[Cite as State v. Hardman, 2018-Ohio-5152.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION 

No. 105810 

STATE OF OHIO

 PLAINTIFF-APPELLEE 

vs. 

DEAFRED C. HARDMAN, 

 A.K.A. DEALFRED HARDMAN

 DEFENDANT-APPELLANT 

JUDGMENT:

APPLICATION DENIED 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-585663-B 

Application for Reopening 

Motion No. 520302 

RELEASE DATE: December 17, 2018 
FOR APPELLANT

Deafred Hardman, a.k.a. Dealfred Hardman, pro se 

Inmate No. 663624 

Oriana House, Inc. 

P.O. Box 1501 

Akron, Ohio 44309 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Frank Romeo Zeleznikar 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

MELODY J. STEWART, J.: 

{¶1} Deafred C. Hardman, a.k.a. Dealfred Hardman, has filed a timely application for 

reopening pursuant to App.R. 26(B). Hardman is attempting to reopen the appellate judgment, 

rendered in State v. Hardman, 8th Dist. Cuyahoga No. 105810, 2018-Ohio-2062, that affirmed 

his convictions for the offenses of compelling prostitution (R.C. 2907.21(A)(2)(a)) and unlawful 

sexual conduct with a minor (2907.04(A)). We decline to reopen Hardman’s original appeal. 

I. Standard of Review Applicable to App.R. 26(B) Application for Reopening 

{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Hardman 

is required to establish that the performance of his appellate counsel was deficient and the 

deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 

497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990). 
{¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of an 

attorney’s work must be highly deferential. The court further stated that it is all too tempting 

for a defendant to second-guess his attorney after conviction and that it would be too easy for a 

court to conclude that a specific act or omission was deficient, especially when examining the 

matter in hindsight. Thus, a court must indulge in 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. Strickland. 

II. State’s Failure to Provide Discovery

{¶4} Hardman has raised three proposed assignments of error in support of his application 

for reopening. Hardman’s first proposed assignment of error is that: 

The state committed prosecutorial misconduct by deliberately violating 

appellant’s [rights under] 5th, 6th, and 14th Amendments of the U.S. Constitution 

and admitting inadmissable hearsay evidence to the jury only to withdraw that 

evidence once inadmissable hearsay testimony had been elicited regarding the 

same. 

{¶5} Hardman, through his initial assignment of error, argues that appellate counsel was 

ineffective by not challenging the state’s failure to provide his dental records during discovery. 

Specifically, Hardman argues that the state was prohibited from introducing his dental records at 

the retrial because the prosecution had promised not to introduce any exhibits from the original 

trial. 

{¶6} The Supreme Court of Ohio, in O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 

59, 2007-Ohio-1102, 862 N.E.3d 803, reaffirmed the application of the doctrine of res judicata 

and held that: 
The doctrine of res judicata encompasses the two related concepts of claim 

preclusion, also known as res judicata or estoppel by judgment, and issue 

preclusion, also known as collateral estoppel. Grava v. Parkman Twp. (1995), 73 

Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226. Claim preclusion prevents 

subsequent actions, by the same parties or their privies, based upon any claim 

arising out of a transaction that was the subject matter of a previous action. Fort 

Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 

392, 395, 1998-Ohio-435, 692 N.E.2d 140. Where a claim could have been 

litigated in the previous suit, claim preclusion also bars subsequent actions on that 

matter. Grava, 73 Ohio St.3d at 382, 653 N.E.2d 226. 

 

Issue preclusion, on the other hand, serves to prevent relitigation of any fact or 

point that was determined by a court of competent jurisdiction in a previous action 

between the same parties or their privies. Fort Frye, 81 Ohio St.3d at 395, 692 

N.E.2d 140. Issue preclusion applies even if the causes of action differ. Id. 

O’Nesti, supra, at ¶ 6. 

{¶7} Herein, Hardman has already attempted to litigate the claim that the state was 

precluded from introducing any exhibits at the second trial that had been previously admitted into 

evidence during the course of the original trial. 

During the first trial, Hardman introduced his own dental records into evidence 

without objection from the state. During retrial, a police detective testified that a 

telephone number given in conjunction with the ad for the victim’s escort services 

was the same number appearing on Hardman’s dental records. Hardman claims 

that the records were inadmissible because the state did not disclose those dental 

records to him in pretrial discovery and the state reneged on its representation to 

the court that it would not introduce any exhibits from the first trial. 

The state did not promise that it would not introduce any exhibits from the first 

trial. As part of his motion in limine, Hardman asked that the state be precluded 

from introducing his testimony from the first trial because he would not be 

testifying in the second trial. The state told the court that it “does not have any 

intention of introducing any past testimony in its case in chief.” At no point did 

the state agree not to introduce any exhibits that were admitted at the first trial. 

Indeed, an agreement to that effect would have doomed the state’s case — it 

would have prohibited the state from introducing the ad for escort services, a 

crucial piece of evidence. 

Hardman’s claim that the state did not produce the dental records in discovery is 

equally without merit. The point of pretrial discovery is to prevent unfair surprise. 

State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978). Not only did 
the dental records belong to Hardman, he introduced them in the first trial. We are 

hard-pressed to understand how Hardman would have been surprised that the state 

used them in the second trial. 

 

Hardman, supra, at ¶ 18. 

{¶8} The doctrine of res judicata bars Hardman from once again raising the issue of the 

improper admission into evidence of his dental records because the issue was previously 

adjudicated before this court on appeal. Hardman has failed to establish any prejudice through 

his first proposed assignment of error. 

III. Failure of State to Authenticate Record

{¶9} Hardman’s second proposed assignment of error is that: 

The trial court erred when it overruled appellant’s motion in limine and objection 

to state exhibit (2) the Backpage advertisement as it violated Evid.R. 902, 403(A), 

R.C. 2921.12, R.C. 2945.82 and Evid.R. 1003. 

{¶10} Hardman, through his second proposed assignment of error, states his appellate 

counsel was ineffective on appeal by failing to argue that a Backpage.com advertisement, 

introduced by the state at trial as state’s exhibit No. 2, was not properly authenticated. 

{¶11} Evid.R. 901(A) deals with the authentication of evidence prior to admission at trial. 

 The authenticity requirement is satisfied by “evidence sufficient to support a finding that the 

matter in question is what the proponent claims.” Evid.R. 901(A). Evid.R. 901(B) and 902 

establish methods by which a document may be authenticated by extrinsic evidence or by which 

it may be self-authenticated so extrinsic evidence is not required because the document possesses 

on its face indicia of authenticity which are sufficient to support the finding that the document is 

what it purports to be. State v. Smith, 63 Ohio App.3d 71, 74, 577 N.E.2d 1152 (11th Dist.1989). 

 Evid.R. 901 provides a liberal standard for the authentication of evidence. State v. Pruitt, 8th 

Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 11, citing State v. Teague, 8th Dist. Cuyahoga 
No. 90801, 2009-Ohio-129. In addition, the decision to admit or exclude evidence rests within 

the trial court’s sound discretion. State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997). 

Thus, a reviewing court will not reverse the trial court’s decision absent an abuse of discretion. 

{¶12} This court has also stated that: 

Circumstantial evidence, as well as direct, may be used to show authenticity. State 

v. Williams, supra, 64 Ohio App.2d 271, 274, 413 N.E.2d 1212 (8th Dist. 1979). 

Moreover, the threshold standard for authenticating evidence pursuant to Evid.R. 

901(A) is low, and “does not require conclusive proof of authenticity, but only 

sufficient foundational evidence for the trier of fact to conclude that * * * [the 

evidence] is what its proponent claims it to be. State v. Easter, 75 Ohio App.3d 

22, 25, 598 N.E.2d 845 (4th Dist. 1991).” State v. Trice, 8th Dist. Cuyahoga No. 

89933, 2008-Ohio-2930, ¶ 22. 

Pruitt at ¶ 11, quoting Teague at ¶ 7. 

{¶13} Herein, Nathan Yockey authenticated state’s exhibit No. 2 by direct testimony. 

Yockey testified that: 1) he is the custodian of records for Backpage.com (tr. 351); 2) he has been 

employed by Backpage.com as the custodian of records for 6.5 years (tr. 351); 3) Backpage.com 

is an online classified advertisement website (tr. 351); 4) in order to place an advertisement on 

Backpage.com, an account must be created (tr. 352); 5) Backpage.com received a subpoena from 

the Cuyahoga County Prosecutor in 2014 for records relating to an advertisement posted under 

I.D. No. 17654164 (tr. 353); 

6) records associated with I.D. No. 17654164 were provided to the Cuyahoga County Prosecutor 

(tr. 353); 7) the records provided to the Cuyahoga County Prosecutor consisted of ten pages and 

included the advertisement placed on Backpage.com, the title of the advertisement, the posted 

date of the advertisement, an invoice, multiple images associated with the advertisement, and 

administrative data (tr. 353 - 355); 8) the administrative data includes the posting region for the 

advertisement, the amount paid for the advertisement, the name of the person that ordered the 
advertisement, the email address associated with the person that ordered the advertisement, and 

the date the advertisement was created (tr. 356 - 357); and 9) the advertisement was posted in the 

escort section of Backpage.com in the Cleveland, Ohio area (tr. 316). 

{¶14} We find that the direct testimony of Nathan Yockey satisfied the requirement of 

authentication for state’s exhibit No. 2 under Evid.R. 901(A). State v. Inkton, 8th Dist. 

Cuyahoga No. 102706, 2016-Ohio-693. Hardman has failed to establish any prejudice through 

his second proposed assignment of error. 

IV. Trial Court was Biased Toward Defendant

{¶15} Hardman’s third proposed assignment of error is that: 

Whether the trial judge committed structural error by being bias[ed] toward the 

appellant. 

{¶16} Hardman, through his third proposed assignment of error, states that his appellate 

counsel was ineffective on appeal by failing to argue that the trial court was biased during the 

course of trial resulting in prejudice. This court, with regard to the issue of judicial bias, has 

stated that: 

Due process requires that a criminal defendant be tried before an impartial judge. 

State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. If the 

record evidence indicates that the trial was infected by judicial bias, the remedy is 

a new trial. State v. Dean, 127 Ohio St.3d 140, 2010 Ohio 5070, 937 N.E.2d 97, ¶ 

2. Judicial bias is defined as “a hostile feeling or spirit of ill will or undue 

friendship or favoritism toward one of the litigants or his attorney, with the 

formation of a fixed anticipatory judgment on the part of the judge * * * .” Id. at ¶ 

48, quoting Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), 

paragraph four of the syllabus. Judicial bias is “contradistinguished from an open 

state of mind which will be governed by the law and the facts.” Id., quoting Pratt

at paragraph four of the syllabus. 

State v. Hough, 8th Dist. Cuyahoga Nos. 98480 and 98482, 2013-Ohio-1543, 990 N.E.2d 653, ¶ 

10. 
{¶17} Our review of the record fails to disclose that the trial court judge harbored any ill 

will or hostility toward Hardman during the course of trial. We find that the alleged comments 

made by the trial court that referenced retrial following reversal by this court for a new trial, lack 

of recollection, and placing the burden upon the defendant to secure the attendance of a witness, 

all fail to establish bias toward Hardman. In addition, we fail to find that the trial court uttered 

“epithets, slurs, demeaning nicknames, [or] negative stereotyping” against Hardman. Lamar, 

supra; State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651. Hardman has failed 

to establish that he was prejudiced through his third proposed assignment of error. 

{¶18} Accordingly, the application for reopening is denied. 

 

MELODY J. STEWART, JUDGE 

MARY EILEEN KILBANE, P.J., and 

LARRY A. JONES, SR., J., CONCUR