[Cite as State v. Salyers , 2021-Ohio-2978.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-20-55

v. GABRIEL W. SALYERS, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2018 0143 Judgment Affirmed Date of Decision: August 30, 2021

APPEARANCES: 

### Patrick T. Clark for Appellant 

### Jana E. Emerick for AppelleeCase No. 1-20-55

-2- MILLER, J. {¶1} Defendant-appellant, Gabriel W. Salyers, appeals the November 3 , 2020 judgment of the Allen County Court of Common Pleas denying his petition for postconviction relief. For the reasons that follow, we aff irm. Background {¶2} This case arises from the April 3, 2018 death of J.S., the mino r child of Shelly Wireman. Salyers and Wireman, who were in a romantic re lationship at the time of the incident, lived together with Wireman’s children fr om previous relationships, including J.S. Salyers’s children from previous relationships would also sometimes be present. On April 1, 2018, Wireman made an e mergency call to report that she found J.S. unresponsive in his bedroom. J.S. w as transported to the hospital, and he was pronounced dead on April 3, 2018. During an interview with law enforcement, Salyers admitted he shook J.S., applied pressu re to his abdomen with his fist, and flicked his penis. {¶3} We have previously recited much of the factual and procedural background of this case, and we will not duplicate those effort s here. State v. Salyers , 3d Dist. Allen No. 1-19-17, 2020-Ohio-147, ¶ 1-7. Relevant t o this appeal, on May 17, 2018, the Allen County Grand Jury indicted Salyers o n seven counts: Count One of aggravated murder in violation of R.C. 2903.01(C), an unclassified felony; Count Two of murder in violation of R.C. 2903.02(B), an unclassifiedCase No. 1-20-55

-3- felony; Counts Three through Five of endangering children in vi olation of R.C. 2919.22(B)(1), second-degree felonies; Count Six of domestic vi olence in violation of R.C. 2919.25(A), a fourth-degree felony; and Count Seven of possession of drugs in violation of R.C. 2925.11(A), a first-degree misdemeanor. {¶4} On May 23, 2018, Salyers’s trial counsel filed a notice of appe arance. On May 24, 2018, Salyers appeared for arraignment and pleaded n ot guilty to the

counts of the indictment. {¶5} The case proceeded to a jury trial on March 12-15 and 18-19, 20 19. On March 19, 2019, the jury found Salyers guilty of Counts Two, Th ree, Four, Five, Six, and Seven. However, the jury found Salyers not guilty of the aggravatedmurder charge in Count One. The trial court accepted the jury’ s verdict and found Salyers guilty of Counts Two, Three, Four, Five, Six, and Seven

. {¶6} That same day, the trial court sentenced Salyers. The trial co urt found that Counts Two, Four, and Six merged for the purpose of senten cing, and the State elected to proceed on Count Two. The trial court sentenced Sal yers to 15 years to life in prison on Count Two, 8 years in prison on Count Three, 8 years in prison on Count Five, and 180 days in jail on Count Seven. Further, the trial court ordered the prison terms imposed for Counts Two, Three, and Five to be served consecutively to each other for an aggregate prison term of 31 years to life. The

trial court ordered the sentence for Count Seven to run concurr ently to the prisonCase No. 1-20-55

-4- terms imposed on Counts Two, Three, and Five. On March 20, 201 9, the trial court filed its judgment entry of conviction and sentence. {¶7} On April 10, 2019, Salyers filed a notice of appeal with this c ourt. New counsel was appointed for Salyers’s direct appeal. In his dire ct appeal, Salyers raised three assignments of error. In his first assignment of error, Salyers argued his trial counsel was ineffective for stipulating to the admiss ion of certain pieces of evidence, making factual misrepresentations during opening stat ements, and failing to object to inadmissible evidence. Salyers , 2020-Ohio-147, at ¶ 8. In his second assignment of error, Salyers argued he was denied the constitut ional right to present a complete defense because the trial court excluded evidence wh ich would have exculpated him and inculpated Wireman. Id. at ¶ 38. In his third assignment of error, Salyers argued the cumulative effect of the errors alleg ed in his first and second assignments of error denied him a fair trial. Id. at ¶ 60. This Court rejected Salyers’s arguments and affirmed the judgment of the trial cour t. Id. at ¶ 64. {¶8} On January 27, 2020, Salyers filed a notice of intention to fil e a postconviction petition and a motion to compel Mercy Health – S t. Vincent Medical Center to release all radiological imaging related to J.S. to b oth parties. On February 11, 2020, the trial court denied Salyers’s motion to compel the production of

records.Case No. 1-20-55

-5- {¶9} On August 5, 2020, Salyers filed a petition for postconviction relief requesting an evidentiary hearing. Salyers asserted three clai ms for relief predicated on the premise that his trial counsel was ineffective. First, Salyers alleged his trial counsel was ineffective for failing to adequately investigate t he cause of J.S.’s death. Specifically, Salyers alleged that his trial counsel was ineffe ctive because he did not “ever consult[] with or retain[] an expert.” Salyers contends that the opinions rendered by the State’s experts at trial regarding J.S.’s cause of death were controversial and may have proven too weak to sustain a convict ion if directly challenged. Salyers argued that his trial counsel’s failure to consult with or retain an expert prejudiced him because “[h]ad [his] trial attorney fu lly investigated the basis of the State’s expert testimony, several additional trial theories would have been opened.” Salyers contended that if his trial counsel had consulted with or retained an expert witness: (1) trial counsel would have been b etter equipped to challenge the State’s forensic conclusions and (2) trial counse l would not have been “hemmed in” by the conclusions that the State’s experts reached about the timing of J.S.’s injuries. {¶10} In his second claim for relief, Salyers argued his trial counse l was ineffective for failing to obtain and evaluate the radiology re cords the State’s experts relied upon. Specifically, Salyers contended there was no evide nce that the State provided him all relevant laboratory or hospital reports or tha t his trial counselCase No. 1-20-55

-6- sought to obtain J.S.’s birth records, hospital records, or rad iological records. According to Salyers, his trial counsel’s failure to obtain cri tical medical records was deficient because the State’s expert witnesses relied on th e hospital records, particularly the radiological records, to support their opinion s that J.S. was the victim of shaking and blunt force trauma and became unresponsiv e immediately following his injury. Salyers argued that his trial counsel’s “failure to obtain crucial medical records put counsel in a position where he could not ma ke a strategic decision” regarding the manner and cause of J.S.’s death, could not conduct proper evaluation of the State’s expert opinion reports, or adequately prepare for crossexamination of the State’s expert witnesses. Salyers contended that his trial counsel’s failure to obtain the complete hospital records preju diced him. Specifically, Salyers argued that if his trial counsel had requ ested and obtained J.S.’s complete hospital records, “it is reasonably likely he would ha ve engaged the services of an expert to assist and/or developed additional lin es of crossexamination.” {¶11} In his third claim for relief, Salyers argued his trial counsel was ineffective for fa iling to r equest a Daubert hearing on the question of the timing of J.S.’s fatal injury. Salyers contended that although the State ’s expert witnesses concluded that J.S. lost consciousness immediately following hi s fatal injury and did not experience a lucid interval, an expert witness secured by Salyers’sCase No. 1-20-55

-7- postconviction counsel alleged that it is possible that J.S. ex perienced a lucid interval between the infliction of his injury and his loss of c onsciousness. Salyers argued that in a Daubert motion, his trial counsel could have pointed to failures in the medical examiner’s methodology that rendered her conclusion about lucid intervals unreliable. According to Salyers, his trial counsel’ s failure to seek or secure an expert witness “left him blind to the methodological failures” of the State’s expert witnesses. (Doc. No. 219). Salyers contended t hat if his trial counsel had consulted with an expert and obtained a full set of essenti al medical records, “the flaws in the State’s expert opinion would have come into f ocus” and a Daubert motion challenging the expert witnesses’ conclusion that J.S. d id not experience a lucid interval “would have been a next step taken by reasonably competent counsel.” ( Id. ). Salyers argues that he was prejudiced by his trial counsel’ s failure to file a

Daubert motion because “an order prohibiting testimony about whether [J .S.] had a lucid interval would have critically shifted the case’s traject ory.” ( Id. ). Specifically, according to Salyers, the State would not have “benefited from the presumption that the last person present with [J.S.] was responsible for his dea th.” ( Id. ). Salyers argued that testimony regarding Wireman’s frustrations as a mot her contrasted with testimony regarding Salyers’s “playfulness” with the children w ould have been more probative. ( Id. ). Further, Salyers argued that a successful Daubert challenge would have heightened the probative value of the testimony that J.S. spent moreCase No. 1-20-55

-8- time with Wireman than Salyers in the 72 hours preceding his lo ss of consciousness. Salyers opined that reasonable probability exists that “had the State’s expert testimony been limited to only reliable and demonstrable conclu sions,” jurors would have harbored reasonable doubt whether Wireman or Salyers fatal ly injured J.S. ( Id. ). Attached to Salyers’s petition for postconviction relief we re 11 affidavits in support. {¶12} On November 2, 2020, the State filed its response to Salyers’s petition for postconviction relief. The State argued that Salyers’s tri al counsel explored the idea of obtaining expert assistance, but determined as a matter of strategy not to hire an expert for utilization in Salyers’s defense at trial, even i f the reasons for the

decision are not reflected in trial counsel’s case file. Furth er, the State argued that trial counsel’s decision was reasonable, as trial counsel vigor ously pursued a defense that Wireman was the last person alone with J.S. before he lost consciousness and was, therefore, responsible for the child’s d eath. {¶13} With respect to Salyers’s argument that his trial counsel was ineffective because he failed to obtain and evaluate radiology studies the State’s experts relied upon, the State argued that the evidence present ed at trial does not reflect that the radiological images referenced in Salyers’s pe tition for postconviction relief were “relied upon to any relevant extent by the state’s medical experts, much less that those records were central to the state ’s theory of the case *Case No. 1-20-55

-9- * *.” (Doc. No. 222). Rather, the State contended that becaus e the case involved a deceased victim, it was the autopsy and findings resulting ther efrom that provided the most “material evidence” regarding the coroner’s conclusion s regarding J.S.’s cause of death and the timing of the infliction of the fatal in juries. ( Id. ). {¶14} The State also noted that although Salyers’s postconviction exp ert stated that a lucid interval was “possible” between J.S.’s inju ry and loss of consciousness, the expert could not rule out the possibility th at J.S.’s injury occurred immediately prior to his loss of consciousness. The State also argued that even if the trial court assumed that J.S. could have experienced a luci d interval following his injury, the evidence presented at the trial established tha t Salyers “had complete access” to J.S. prior to his loss of consciousness. Thus, even if J.S. did experience a lucid interval, Salyers could not be excluded as the perpetra tor. Additionally, the State argued that Salyers’s trial counsel vigorously pursued a theory at trial that Wireman had abused J.S. previously and had been the one to infl ict the injury that

caused the child’s death. {¶15} On November 3, 2020, the trial court filed a judgment entry den ying Salyers’s petition for postconviction relief without a hearing. In its judgment entry, the trial court found that Salyers’s petition for postconvictio n relief was barred by res judicata. The trial court also found that, even if Salyers ’s petition forCase No. 1-20-55

-10- postconviction relief was not barred by res judicata, Salyers f ailed to demonstrate

that his trial counsel was ineffective. {¶16} On November 13, 2020, Salyers filed a notice of appeal. He rai ses two assignments of error for our review, which we will discuss together. Assignment of Error No. I

The trial court abused its discretion when it determined that r es judicata bars consideration of Gabe’s postconviction petition. State v. Cole , 2 Ohio St.3d 112, 443 N.E.2d 169 (1982); State v. Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905 (1999); November 3, 2020 Judgment Entry; Postconviction Exhibits A-K. Assignment of Error No. II The trial court abused its discretion by finding that no new credible evidence supported Gabe’s postconviction grounds for relief. Hinton v. Alabama , 571 U.S. 263, 274, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014); November 3, 2020 Judgment Entry; Postconviction Exhibits A-K. {¶17} In his first assignment of error, Salyers argues that the trial court abused its discretion by determining his petition for postconvi ction relief was barred by res judicata. In his second assignment of error, Salyers ar gues that the trial court erred by finding that he failed to demonstrate that his trial c ounsel was ineffective. Standard of Review {¶18} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.

Wine , 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10. The sta tute sets forth who may petition for postconviction relief:Case No. 1-20-55

-11- Any person who has been convicted of a criminal offense * * * a nd who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable unde r the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set a side the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentar y evidence in support of the claim for relief. R.C. 2953.21(A)(1)(a) (Apr. 6, 2017) (current version at R.C. 2 953.21(1)(a) (Apr. 12, 2021)). {¶19} “The filing of a petition for postconviction relief does not automatically entitle the petitioner to an evidentiary hearing. ” State v. Andrews , 3d Dist. Allen No. 1-11-42, 2011-Ohio-6106, ¶ 11, citing State v. Calhoun , 86 Ohio St.3d 279, 282 (1999). Under R.C. 2953.21(D), “[b]efore granti ng a hearing on a petition filed under [R.C. 2953.21(A)], the court shall determi ne whether there are substantive grounds for relief.” In making such a determination, the court shall consider, in ad dition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedin gs against the petitioner, including, but not limited to, the indi ctment, the court’s journal entries, the journalized records of the clerk o f the court, and the court reporter’s transcript. R.C. 2953.21(D). {¶20} “[I]f the court determines that there are no substantive ground s for relief, it may dismiss the petition without an evidentiary hear ing.” State v. Jones , 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 14. “The deci sion to grant theCase No. 1-20-55

-12- petitioner an evidentiary hearing is left to the sound discreti on of the trial court.”

Andrews at ¶ 11. Accordingly, “[w]e review the trial court’s dismissa l of a postconviction petition without a hearing for abuse of discretion.” State v. Jeffers , 10th Dist. Franklin No. 10AP-1112, 2011-Ohio-3555, ¶ 23. An abuse o f discretion suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). When the abuse of discretion standard applies, an appellate court is not to subst itute its judgment for

that of the trial court. State v. Thompson , 3d Dist. Henry No. 7-16-10, 2017-Ohio792, ¶ 11. Relevant Authority and Analysis {¶21} The trial court dismissed Salyers’s petition after concluding, in part, that it was barred by the doctrine of res judicata. “Although a defendant may challenge his conviction and sentence by either a direct appeal or a petition for postconviction relief, any claims raised in a postconviction re lief petition will be barred by res judicata where the claim was or could have been r aised on direct appeal.” State v. Schwieterman , 3d Dist. Mercer No. 10-09-12, 2010-Ohio-102, ¶ 23. “‘[U]nder the doctrine of res judicata, a final judgment o f conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant * *Case No. 1-20-55

-13- * on an appeal from that judgment.’” (Emphasis sic.) State v. Troglin , 3d Dist. Union No. 14-09-04, 2009-Ohio-5276, ¶ 13, quoting State v. Perry , 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. The doctrine “prom otes the principles of finality and judicial economy by preventing endless relitiga tion of an issue on which a defendant has already received a full and fair opportun ity to be heard.”

State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18, citing State ex rel. Willys-Overland Co. v. Clark , 112 Ohio St. 263, 268 (1925). Thus, the doctrine of res judicata bars all claims except those that were not availab le at trial or on appeal because they are based on evidence outside the record. See Jones , 2007-Ohio-5624, at ¶ 20. Further, “[t]he evidence submitted outside the record must be competent, relevant, and material to the issue at hand.” State v. Jackson , 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 59. {¶22} However, “since ‘counsel cannot realistically be expected to ar gue his own incompetence, res judicata does not act to bar a defendant represented by the same counsel at trial and upon direct appeal from raising a cla im of ineffective assistance of counsel in a petition for postconviction relief.’ ” State v. Lentz , 70 Ohio St.3d 527, 529-530 (1994), quoting State v. Cole , 2 Ohio St.3d 112 (1982), fn.1. But, “where a defendant was represented by new counsel on direc t appeal ‘who was in no way enjoined from asserting the ineffectiveness of appell ant’s trial counsel,’

claims of ineffective assistance must be brought on direct review .” (Emphasis sic.)Case No. 1-20-55

-14- State v. Bradley , 3d Dist. Union No. 14-08-27, 2008-Ohio-6071, ¶ 8, quoting Cole at 114. “However, if an ineffective assistance of counsel issu e concerns a matter outside the record, the appellate court could not consider it o n direct appeal because the court can only consider matters contained in the record.” State v. Scott-Hoover , 3d Dist. Crawford No. 3-04-11, 2004-Ohio-4804, ¶ 18, citing State v. Smith , 17 Ohio St.3d 98, 101 (1985), fn.1. Although ineffective assistance of trial counsel should ordinarily be raised on direct appeal, res judicata does not ba r a defendant from raising ineffective assistance in a petition for postconviction relief if the claim is

based on evidence outside the record. Id. “This principle applies even when the

issue of ineffective assistance of counsel was raised on direct appeal.” Id. {¶23} “‘To overcome the res judicata bar, evidence offered [outside] the record must demonstrate that the petitioner could not have appe aled the constitutional claim based upon information in the original rec ord.’” State v. Lewis , 3d Dist. Logan No. 8-19-08, 2019-Ohio-3031, ¶ 14, quoting State v. Slagle , 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 16, citing Ohio v. Franklin , 1st Dist. Hamilton Nos. C-930760 and B-8804127, 1995 WL 26281, *7 (Jan. 2 5, 1995); State

v. Lawson , 103 Ohio App.3d 307, 315 (12th Dist.1995). “‘This means that the evidence relied upon must not be evidence which was in existenc e or available for use at the time of trial or direct appeal, and finally, cannot be merely cumulative ofCase No. 1-20-55

-15- the evidence already presented.’” Id. , quoting State v. Murphy , 10th Dist. Franklin No. 00AP-233, 2000 WL 1877526, *3 (Dec. 26, 2000). {¶24} “[I]n reviewing the documentary evidence in support of the peti tion, the trial court may judge their credibility in determining whet her to accept the affidavits as true statements of fact for the purpose of showin g substantive grounds

for relief.” State v. Howald , 3d Dist. Union No. 14-08-23, 2008-Ohio-5404, ¶ 11, citing Calhoun , 86 Ohio St.3d at 284. The trial court should consider the re levant factors when assessing the credibility of affidavits, including : (1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits con tain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hear say, (4) whether the affiants are relatives of the petitioner, or otherw ise interested in the success of the petitioner’s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at tria l.

Calhoun at 285. An affidavit, being by definition a statement that the affiant has sworn to be truthful, and made under penalty of perjury, should not l ightly be deemed false. However, not all affidavits accompanying a postconviction relief petition demonstrate entitlement to an evidentiary hearing, even assuming the truthfulness of their co ntents. Thus, where a petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstr ating a constitutional violation, then the actual truth or falsity of t he affidavit is inconsequential.

Calhoun at 284.Case No. 1-20-55

-16- {¶25} With respect to Salyers’s argument that he received ineffective assistance of trial counsel, we find that Salyers was represent ed by new counsel for his direct appeal. In fact, Salyers’s appellate counsel did ar gue that his trial counsel was ineffective for (1) “stipulating to the admission of [Wirem an’s] videotaped interviews with law enforcement, in pursuit of a defense that i dentified [Wireman] as [J.S.’s] assailant”; (2) “making factual misrepresentations about the nature of [J.S.’s] injuries during opening statements”; and (3) “failing to object to inadmissible evidence related to [Salyers’s] alleged prior acts of domestic violence” and “to the admission of transcript summaries and law enforceme nt opinions.” Salyers , 2020-Ohio-147, at ¶ 8. Accordingly, Salyers’s claims of inef fective assistance of trial counsel are barred by res judicata unless t hey are based on

evidence outside the record. See Jones , 2007-Ohio-5624, at ¶ 22. {¶26} Salyers argues that his petition for postconviction relief is b ased on evidence outside the record. Specifically, Salyers references the 11 affidavits attached to his petition for postconviction relief and alleges the information contained in the affidavits contain competent, relevant, and ma terial information

which advance his claim that his trial counsel was ineffective. {¶27} Exhibit A, the affidavit of Patrick Clark, a supervising attorn ey at the Office of the Ohio Public Defender (“OPD”), states that upon re ceiving Salyers’s file from the office of Salyers’s trial counsel, the file inclu ded hospital records thatCase No. 1-20-55

-17- were not certified as complete. The affidavit also stated that trial counsel’s file did not include radiological images, and the State indicated that i t did not have the referenced radiological images in its file. Exhibit B, the aff idavit of Lindsay Schmidt, a paralegal at OPD, also stated the file the OPD recei ved from Salyers’s trial counsel contained hospital records related to J.S. that w ere not certified as complete, and did not contain radiological images. Schmidt’s a ffidavit also stated she found a several pages in the file that included the names a nd telephone numbers of various hospitals. A copy of the six handwritten pages, whi ch included the names and telephone numbers of various hospitals, many of which are c hildren’s hospitals, was attached to the affidavit as a subexhibit. Exhibit C, the affidavit of Lisa Ostrolenk Caudill, the Librarian for OPD, revealed that she was contacted by Salyers’s trial counsel in May 2017 for assistance finding a co nsulting pediatric radiologist. According to the affidavit, Ostrolenk Caudill ret urned trial counsel’s email and included the names and contact information for two pe diatric radiologists. A copy of the email correspondence was attached to the affidavi t as a subexhibit. {¶28} Exhibit D is the affidavit of Dr. Evan Matshes, a forensic path ologist consulted by Salyers’s postconviction counsel. Incorporated in to Dr. Matshes’s affidavit is lengthy report containing his expert medical opini ons regarding J.S.’s injuries and cause of death. Included in the report is Dr. Mat shes expert opinion

that J.S. died as a result of blunt force trauma to his head. Dr. Matshes furtherCase No. 1-20-55

-18- opined that, contrary to the testimony of Dr. Schlievert and Dr . Scala-Barnett, the State’s medical experts who testified that J.S. would have lost consciousness immediately following his ultimately-fatal injury, it is possib le J.S. experienced a lucid interval following his injury. According to Dr. Matshes, the lucid interval, if experienced, could have lasted between hours and days. Accordi ngly, Dr. Matshes opined that the timing of J.S.’s lethal head trauma is unknown. Dr. Matshes’s report also included his opinion that based on the totality of the ava ilable information, including the presence of unexplained new and old injuries, J.S .’s death is best classified as a homicide. Finally, Dr. Matshes’s alleged in hi s report that J.S.’s autopsy was performed in a fashion that does not conform with n ational and international expectations for forensic pathologists. {¶29} Exhibit E, the affidavit of Tom Coulter, Salyers’s boss and clo se friend, detailed Salyers’s work schedule in the days preceding J.S.’s injury. Exhibits F through K are affidavits of Salyers’s family members and indi viduals associated with Salyers’s family. In general, these affidavits summarize the affiants’ interactions with Salyers, J.S., and Wireman in the days preced ing J.S.’s injury, including J.S.’s demeanor over the preceding weekend. Several of the affidavits also contain observations of previous injuries observed on J.S. prior to the fatal injury and remarks criticizing Wireman’s parenting.Case No. 1-20-55

-19- {¶30} After reviewing Salyers’s petition for postconviction relief an d affidavits in support, the trial court determined that the docu ments “added no new credible evidence * * *.” (Doc. No. 223). Accordingly, the tr ial court concluded that Salyers’s petition was barred on the basis of res judicata

. {¶31} Upon review of the record, we find that Salyers’s petition for postconviction relief is based, in part, on evidence outside of the record and is, therefore, not barred by res judicata. Our review of the recor d indicates that some of the evidence and affidavits Salyers attached to his petition for postconviction relief, such as the affidavits of his close family and friends, were merely cumulative of evidence already in the record. However, we find that sever al of the affidavits and supporting documentation comprise evidence outside the reco rd. For example, the expert medical opinion of Dr. Matshes demonstrates that Sal yers could not have appealed his constitutional claim based upon information in the original record. Accordingly, Salyers’s petition for postconviction relief is no t totally barred by res judicata. Therefore, we turn to the merits of his claim that h e received ineffective

assistance of trial counsel. {¶32} A defendant asserting a claim of ineffective assistance of tria l counsel must establish: (1) the counsel’s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole , 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington , 466Case No. 1-20-55

-20- U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel ’s conduct was deficient or unreasonable, the defendant must overcome the pres umption that counsel provided competent representation and must show that co unsel’s actions were not trial strategies prompted by reasonable professional j udgment. Strickland at 689. Counsel is entitled to a strong presumption that all d ecisions fall within the wide range of reasonable professional assistance. State v. Sallie , 81 Ohio St.3d 673, 675 (1998). Tactical or strategic decisions, even if unsuccess ful, do not generally

constitute ineffective assistance. State v. Frazier , 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a substantial v iolation of counsel’s

essential duties to his client. See State v. Bradley , 42 Ohio St.3d 136, 141-142 (1989), citing State v. Lytle , 48 Ohio St.2d 391, 396-397 (1976), vacated in part on other grounds , Lytle v. Ohio , 438 U.S. 910, 98 S.Ct. 3135 (1978). {¶33} Prejudice results when “‘there is a reasonable probability that , but for counsel’s unprofessional errors, the result of the proceeding w ould have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability is a probability sufficient to undermine confidence in the outc ome.’” Id. , quoting

Strickland at 694. If the petitioner cannot prove one of the elements, it is “unnecessary for a court to consider the other prong of the tes t.” State v. Walker , 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.Case No. 1-20-55

-21- {¶34} “In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is ‘wh ether the accused, under all the circumstances, * * * had a fair trial and substantial j ustice was done.’”

Calhoun , 86 Ohio St.3d, at 289, quoting State v. Hester , 45 Ohio St.2d 71 (1976), paragraph four of the syllabus. {¶35} The failure to make either the deficiency or prejudice showing defeats

a claim of ineffective assistance of counsel. State v. Frye , 10th Dist. Franklin Nos. 14AP-988 and 14AP-989, 2015-Ohio-3012, ¶ 11, citing Strickland , 466 U.S. at 697. Thus, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a r esult of the alleged deficiencies. * * * If it is easier to dispose of an ineffecti veness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” Strickland at 697. Accordingly, we will first address Salyers’s argument that he was prejudiced by his trial counsel’s alleged errors. {¶36} Salyers offers several arguments in support of his position tha t he was prejudiced by his trial counsel’s alleged deficient performance . First, Salyers argues that if his trial counsel had consulted with a medical expert i t “would have opened

additional defense theories about the manner of J.S.’s death.” (Appellant’s Reply Brief at 4). Salyers argues that because his trial counsel did not consult with an expert witness, none of his trial counsel’s decisions could be tactical or strategic.Case No. 1-20-55

-22- {¶37} The basis of Salyers’s argument that his trial counsel failed t o conduct an adequate investigation into J.S.’s injuries and death is tha t he failed to retain an expert witness to review the medical evidence surrounding J.S.’ s injuries and death. In particular, Salyers contends that, if his trial counsel had retained Dr. Matshes or some likeminded medical expert, the medical expert could have t estified that it is theoretically possible that J.S. experienced a lucid interval b etween his ultimately fatal injury and his loss of consciousness. According to Salye rs, this could have “created advantageous trial theories.” {¶38} Additionally, Salyers contends that a medical expert could have challenged the forensic pathologist’s conclusions. Specificall y, Salyers argues that a medical expert could have challenged the forensic pathologist ’s credibility by opining that she failed to meet standard practices. Further, S alyers contends that a medical expert could have challenged the forensic pathologist’s opinion that J.S.’s injuries suggest that he was shaken. According to Salyers, by challenging the forensic pathologist’s findings, “trial counsel could have adva nced an affirmative case, arguing that J.S. experienced a lucid interval after [Wir eman] fatally injured him in the day or hours leading to his collapse.” (Appellant’s Brief at 11). {¶39} After reviewing the record, including Salyers’s petition for postconviction relief, we are unpersuaded. First, Salyers’s ar gument that further investigation would have necessarily led to Salyers retaining a n expert witness isCase No. 1-20-55

-23- not only vague and speculative, but it assumes that Salyers’s t rial counsel failed to consult an expert witness or pursue the possibility of hiring a n expert witness. However, several of the affidavits attached to Salyers’s petiti on for postconviction relief directly suggest that Salyers’s trial counsel did pursue the possibility of hiring an expert witness. Specifically, the file contained six handwr itten pages of various hospitals, many of which were children’s hospitals. (Doc. No. 219, Ex. B). It is

reasonable to infer that this list was contact information for potential medical experts. Additionally, the affidavit of the Librarian for OPD states that Salyers’s trial counsel actually did contact her to request assistance in locating a consulting pediatric radiologist. Further, the affidavit states that she provided trial counsel with the contact information for two pediatric radiologists. (Doc. N o. 219, Ex. C). Importantly, we note that Dr. Matshes’s name and contact inform ation was not included in either the handwritten pages or the response from t he OPD librarian. Accordingly, for Salyers to assume that his trial counsel faile d to investigate the possibility of consulting or hiring an expert witness simply be cause did not consult with Dr. Matshes is not supported by the record, particularly i n light of the evidence that Salyers’s trial counsel did, in fact, consider the strateg y of consulting with or hiring an expert witness. Further, the record demonstrates Sal yers’s trial counsel chose, as a matter of strategy, not to engage the services of a n expert witness, despite the reasons for that decision not being reflected in trial coun sel’s case file.Case No. 1-20-55

-24- {¶40} With respect to Salyers’s argument that he was prejudiced becau se his trial counsel’s case file did not contain certain radiological images, we find that the particular images that Salyers references were not relied upon by the State’s medical experts. Further, Salyers has failed to establish that the rad iological images were central to the State’s theory of the case. Moreover, it appear s that the State itself did not have the images in its file and did not rely on them wh en crafting and presenting its theory of the case. Nor does Salyers establish how the particular images, if present in the case file, would have resulted in a d ifferent outcome at trial. Rather, Salyers opines that the presence of the images would ha ve encouraged trial counsel to seek the assistance of an expert witness to assist i n interpreting the images. This argument is speculative, at best, and fails to de monstrate that Salyers was in any way prejudiced by the absence of the radiological im ages. {¶41} Next, although Salyers argues he was prejudiced by his trial co unsel’s failure to employ an expert witness, Dr. Matshes’s report and m edical opinions expressed therein are largely consistent with the medical opini ons offered by the State’s medical experts. Consistent with the State’s medical ex pert, Dr. Matshes

concludes that J.S.’s cause of death “is best certified as a ho micide.” (Doc. No. 229, Ex. D). Dr. Matshes based this conclusion on the “totality of available information, including the presence of unexplained old and new injuries.” ( Id. ).Case No. 1-20-55

-25- {¶42} Although Dr. Matshes’s report does include some opinions that d iffer from the opinions of the State’s medical experts, Dr. Matshes’s opinion is not necessarily inconsistent with the State’s theory of the case. Most notably, Dr. Matshes asserts in his report that the timing of J.S.’s ultimat ely lethal head trauma is “unknown” and that it is “possible” that J.S. experienced a lucid interval between the ultimately lethal blunt impact head trauma and when he lost consciousness on April 1, 2018. Although Salyers relies on these statements to suggest that such a medical opinion, if presented at trial, could have expanded the timeline of the injury and lent support to the theory that Wireman delivered the fatal injuries, we note that Dr. Matshes’s report is speculative. Although Dr. Matshes’s as serts that it is “possible” that J.S. experienced a lucid interval, the report d oes not state that J.S. actually did experience a lucid interval. Accordingly, Dr. Matshes’s opinio n regarding the possibility of a lucid interval is not necessaril y at odds with the State’s theory of the case and evidence presented at trial. Further, e ven if J.S. did experience a lucid interval following his fatal injury, the tim eline established at trial demonstrates that Salyers was with the child in the hours and d ays prior to the injury. Specifically, the State presented unrefuted testimony that Saly ers was the only adult present in the home with J.S. earlier in the day. Additionally , Salyers admitted that he was physically abusive with J.S. earlier in the day, includi ng shaking J.S., “flicking” his penis, and pushing his hand into J.S.’s stomach. Salyers also admittedCase No. 1-20-55

-26- to shaking J.S. on another occasion, several weeks prior to his death. This evidence is consistent with the medical evidence and testimony of the St ate witnesses that J.S. had been shaken and suffered injuries that were at various stages of healing. {¶43} Furthermore, a review of the trial record reveals that Salyers’ s trial counsel robustly pursued a theory that Wireman had abused J.S. previously and inflicted his fatal injury. Specifically, with regard to the f atal injury, trial counsel pursued a theory that, although Salyers put J.S. to bed on Apri l 1, 2018, it was Wireman who found him unresponsive. Salyers’s defense vigorous ly pursued a theory that Wireman fatally injured J.S. immediately prior to J .S. going limp in her arms. To present Wireman as a viable alternative suspect, Saly ers’s trial counsel cross-examined the lead detective regarding his interviews with Wireman to point out inconsistencies present in her statements to law enforcemen t. Trial counsel also highlighted Wireman’s substance addiction and attempted to pres ent Wireman as an abusive and neglectful parent. Moreover, defense counsel attem pted to demonstrate that law enforcement immediately focused on Salyers as a suspec t and was not willing to objectively consider Wireman as a suspect in her son ’s death. Specifically, defense counsel contrasted the recordings of poli ce interviews with Wireman and Salyers to demonstrate that law enforcement treated Wireman sympathetically while treating Salyers with suspicion.Case No. 1-20-55

-27- {¶44} Similarly, Dr. Matshes’s opinion regarding J.S.’s cause of deat h is not inherently inconsistent with the opinions rendered by the State ’s medical expert at trial. Specifically, Dr. Matshes opined that J.S.’s death was caused by “blunt head trauma” that was the result of his head being “struck with, by[ ,] or against something” and that the medical evidence does not suggest that J.S. “must” have been shaken. (Doc. No. 229, Ex. D). Dr. Schlievert, the State ’s expert in pediatric abuse who performed a physical examination on J.S. prior to his death, opined that although J.S. may have been shaken, J.S.’s injuries were also c aused by “some sort of blunt force trauma exerted at two different places on the sk ull.” (Mar. 12-19, 2019 Tr. at 480). Dr. Scala-Barnett, the forensic pathologist who performed the autopsy on J.S., opined that J.S.’s fatal injury was the result of shaking and impact with a hard surface. ( Id. at 625). Thus, although the State’s medical experts both stated that J.S.’s fatal injuries likely included shaking, both of the State’s experts also opined that J.S.’s death was caused at least in part by hi s head being struck against or by a hard object. Further, all three medical expert s agree that J.S.’s death was a homicide. Accordingly, although Dr. Matshes does not ass ign the same importance to the possibility that J.S. was shaken, all three e xperts agree that J.S.’s death was the result of blunt force trauma to his head. Thus, particularly in light of Salyers’s admission that he shook J.S. on multiple occasions, i ncluding a time preceding his loss of consciousness, we do not find that Salyer s was prejudiced byCase No. 1-20-55

-28- his trial counsel’s failure to call an expert witness to testif y regarding J.S.’s cause

of death. {¶45} With respect to Salyers’s argument that the forensic pathologis t performed J.S.’s autopsy in a way that did not conform with nat ional and international expectations for forensic pathologists, we are un persuaded. First, although Dr. Matshes opines in his report that J.S.’s autopsy f ell below standards, Dr. Matshes fails to support this assertion with references to the specific national and international standards that the forensic pathologist appar ently failed to meet. Furthermore, Salyers fails to identify specifically how the for ensic pathologist’s alleged errors prejudiced him aside from mere speculation that Dr. Matshes’s opinion regarding the quality of the autopsy may have lessened the credibility of the forensic pathologist in the eyes of the jury. {¶46} In conclusion, after reviewing the totality of the evidence pre sented at trial and the information proffered by Salyers in support of hi s petition for postconviction relief, including the affidavits and their attac hments, we do not find the trial court abused its discretion in determining Salyers fa iled to demonstrate that he was prejudiced by his trial counsel’s alleged errors. See State v. Jones , 2d Dist. Miami No. 2016-CA-22, 2018-Ohio-673, ¶ 67-68 (finding that alth ough trial counsel’s performance was deficient for failing to retain an ex pert to assist with medical issues, this deficiency did not prejudice the defendant ). We also determineCase No. 1-20-55

-29- that the trial court did not abuse its discretion when it concl uded that the postconviction evidence, in the context of the entire record, would not support a reasonable probability of a different result. We note that Sal yers’s petition for postconviction relief was decided by the same judge who preside d over his trial and, therefore, had the opportunity to view and assess the credibili ty of all of the witnesses and evidence presented at trial. Accordingly, the ev idence Salyers submitted with his postconviction petition is not sufficient to undermine our confidence in the outcome of his trial. Salyers was afforded a fair trial and substantial justice was done. Calhoun , 86 Ohio St.3d at 289. {¶47} Finally, Salyers argues that the trial court abused its discret ion by dismissing his petition for postconviction relief without a hea ring. However, after reviewing the record, including the petition, supporting affida vits, and files and records in this case, we find that the trial court did not abus e its discretion by denying Salyers’s petition for postconviction relief without fi rst holding an evidentiary hearing because the claim was facially untenable in light of the evidence

he submitted. {¶48} Accordingly, Salyers’s assignments of error are overruled.Case No. 1-20-55

-30- {¶49} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the Allen County Court

of Common Pleas. Judgment Affirmed WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur. /jlr