[Cite as State v. Smith, 2016-Ohio-7708.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103676

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

IAN SMITH

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-588549-A 

BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Boyle, J. 

RELEASED AND JOURNALIZED: November 10, 2016

-i- 
ATTORNEY FOR APPELLANT

Gregory Scott Robey 

Robey & Robey 

14402 Granger Road 

Cleveland, Ohio 44137 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Edward R. Fadel 

Gregory J. Ochocki 

Assistant County Prosecutors 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
ANITA LASTER MAYS, J.: 

{¶1} Defendant-appellant, Ian Smith (“Smith”), appeals his guilty verdict and 

sentence, asks this court to reverse his conviction, and requests a remand to the trial court 

for a new trial on the merits. After a review of the record, we affirm. 

{¶2} After a bench trial, Smith was found guilty of one count of felonious assault, 

a second-degree felony in violation of R.C. 2903.11(A)(2), and one count of domestic 

violence, a first-degree misdemeanor in violation of R.C. 2919.25(A). Smith was 

referred to probation for a presentence investigation, but failed to appear. Smith was 

subsequently arrested and sentenced to two years imprisonment. 

I. Facts 

{¶3} On August 16, 2014, Smith left an alcohol treatment center without 

permission and a formal discharge. That same day Smith contacted Leonia Bessert 

(“Bessert”), his live-in girlfriend and victim, and asked if he could come back home. 

Bessert agreed. The same day, Smith told Bessert that he was going to return to the 

treatment center. Smith left their home, but returned in the early evening with a pizza, 

and discovered Bessert had locked him out of the home. Bessert testified that Smith 

appeared to be intoxicated because he was stumbling and his speech was slurred. 

Bessert did not let Smith into the house, but instead told him to sleep it off on the porch. 

Bessert put a blanket and a pillow on the porch. Smith became upset and forced his way 

into the home by breaking a window with a shovel, reaching inside to undo the latch, and 
pushing the door. At this time, Bessert sat against the door to prevent Smith from 

entering. Smith shoved the door, moving Bessert across the room. 

{¶4} Upon entering the home, Smith grabbed a wooden chair leg and began 

striking Bessert in the head. According to Bessert, blood began running down her face, 

and she fled to a neighbor’s home, where she called 911. The responding officer, Brian 

Kluth (“Officer Kluth”) testified that when he arrived at the home of Smith and Bessert, 

he observed a cut on Bessert’s head and blood on her face. He testified that Bessert was 

transported to the hospital where her injuries were treated. Officer Kluth located Smith, 

found him asleep and under the influence of alcohol. Officer Kluth also testified that 

Bessert indicated Smith attacked her with a chair leg that belonged to an unfinished chair. 

He collected the chair leg and placed it in an evidence bag. (Tr. 83.) 

{¶5} Detective Clayton (“Det. Clayton”), the detective assigned to the case, 

interviewed both Bessert and Smith. Det. Clayton testified that Bessert indicated that 

she had a cut on her head, but it was not visible because she had thick hair. Det. Clayton 

also testified Smith did not admit to assaulting Bessert. He stated: 

It was Mr. Smith’s claim that he was the one who was assaulted and struck 

with a chair. He did admit that he had been intoxicated. He did admit 

that he forced his way into the home, but he claimed that he was the one 

that was assaulted and not her. (Tr. 64.) 

{¶6} At the conclusion of the bench trial, the trial court found Smith guilty of 

felonious assault and domestic violence. Smith was sentenced to two years 

imprisonment. Smith files this appeal and assigns six errors for our review. 
I. The evidence presented was insufficient as a matter of law to sustain 

a conviction on the felonious assault count. 

II. The verdicts on both the felonious assault count and the domestic 

violence count, were against the manifest weight of the evidence presented. 

III. Appellant was deprived the effective assistance of counsel, when 

trial counsel failed to object to numerous pieces of inadmissible evidence 

that was unfairly prejudicial. 

IV. The trial court committed critical errors in the trial and the 

cumulative effect denied appellant due process of law and a fair trial. 

V. The prosecution engaged in affirmative misconduct which denied 

appellant due process of law and deprived him a fair trial. 

VI. The trial court erred in imposing a prison sentence instead of a 

community control sanction. 

II. Sufficiency of the Evidence 

A. Standard of Review 

{¶7} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied 

to determine whether the case may go to the jury or whether the evidence is legally 

sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio 

St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th 

Ed.1990). When an appellate court reviews a record upon a sufficiency challenge, “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 

(1991), paragraph two of the syllabus. 
B. Law and Analysis 

{¶8} In his first assignment of error, Smith argues that the evidence presented was 

insufficient as a matter of law to sustain a conviction on the felonious assault count. 

Smith was charged with violating R.C. 2903.11(A)(2), which states, “(A) No person shall 

knowingly do either of the following: * * * (2) Cause or attempt to cause physical harm to 

another * * * by means of a deadly weapon or dangerous ordnance.” The appellant 

argues that the chair leg used to hit the victim cannot be classified as a deadly weapon. 

In accordance with the definition set forth in Ohio Rev. Code Ann. Section 

2923.11(A), a deadly weapon must be an instrument capable of killing a 

person by virtue of its design, or by virtue of its manner of use. An 

instrument, no matter how innocuous when not in use, is a deadly weapon if 

it is of sufficient size and weight to inflict death upon a person, when the 

instrument is wielded against the body of the victim or threatened to be so 

wielded. The manner of use of the instrument, its threatened use, and its 

nature determine its capability to inflict death. A deadly weapon may also 

be defined as an instrument of sufficient size and weight and of such shape 

and design that it may be grasped in the hands of another in a manner and 

with sufficient force to kill the other person.

 

State v. Zarlenga, 8th Dist. Cuyahoga No. 55414, 1989 Ohio App. LEXIS 1999 (June 1, 

1989). 

{¶9} A chair leg in and of itself is not a deadly weapon. However, Smith used 

the chair leg to beat Bessert in the head. “One method of establishing a deadly weapon 

is through the ‘bludgeon theory.’” In re Fortney, 162 Ohio App.3d 170, 

2005-Ohio-3618, 832 N.E.2d 1257, ¶ 39 (4th Dist.). 

Under this theory, the prosecution can meet the definition of a deadly 

weapon even if the weapon in question is incapable of inflicting death by 

firing a projectile, by proving that the weapon is capable of bludgeoning a 

person to death. Moreover, a fact finder may “infer the deadly nature of 
an instrument from the facts and circumstances of its use.” Other courts 

have held that a wood stick, when used as a club, may constitute a deadly 

weapon. 

(Citation omitted.) Id. We conclude that the chair leg is capable of bludgeoning a 

person to death coupled with the fact that Smith is 6-feet 6 inches tall and over 300 

pounds. We, therefore, find that there was sufficient evidence to classify the chair leg as 

a deadly weapon, and that the evidence was sufficient to convict Smith of felonious 

assault. Smith’s first assignment of error is overruled. 

III. Manifest Weight of Evidence 

A. Standard of Review 

{¶10} “Although a court of appeals may determine that a judgment of a trial court 

is sustained by sufficient evidence, that court may nevertheless conclude that the 

judgment is against the weight of the evidence.” (Citation omitted.) State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “When a party challenges 

the verdict in a case as against the manifest weight of the evidence, the party is attacking 

the credibility of the evidence presented.” Id. 

This court must be mindful that the weight of the evidence and the 

credibility of witnesses are matters primarily for the trier of fact. State v. 

Bruno, Cuyahoga App. No. 84883, 2005-Ohio-1862. A reviewing court 

will not reverse a verdict where the trier of fact could reasonably conclude 

from substantial evidence that the prosecution proved the offense beyond a 

reasonable doubt. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus; State v. Eley, 56 Ohio St.2d 169, 383 

N.E.2d 132 (1978). Moreover, in reviewing a claim that a conviction is 

against the manifest weight of the evidence, a reviewing court cannot 

reverse a conviction unless it is obvious that the trier of fact 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. Garrow, 103 Ohio 

App.3d 368, 370-371, 659 N.E.2d 814 (1995). 

State v. Mallette, 8th Dist. Cuyahoga No. 87984, 2007-Ohio-715, ¶ 24. 

B. Law and Analysis 

{¶11} In his second assignment of error, Smith contends that the verdicts on both 

the felonious assault count and the domestic violence count were against the manifest 

weight of the evidence presented. Specifically, Smith argues that his guilty verdict rests 

solely on the credibility of Bessert, whom Smith believes is not a credible witness. 

The weight to be given the evidence and the credibility of the witnesses are 

matters primarily for the trier of fact. State v. Patterson, 8th Dist. 

Cuyahoga No. 98127, 2012-Ohio-5511, ¶ 13, citing State v. DeHass, 10 

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. 

The trier of fact has the authority to “believe or disbelieve any witness or 

accept part of what a witness says and reject the rest.” State v. Antill, 176 

Ohio St. 61, 67, 197 N.E.2d 548 (1964). The choice between credible 

witnesses and their conflicting testimony rests solely with the finder of fact 

and an appellate court may not substitute its own judgment for that of the 

finder of fact. State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 

(1986). 

State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, ¶ 55. 

{¶12} Furthermore, 
[I]n the trial of a case, when witnesses testify, the trier of the facts, whether 

it be a jury or the court, determines whether a witness is telling the truth. 

The trier of the facts may believe all, part or none of the testimony of a 

witness. This is generally defined as the credibility of a witness, and it is 

the quality in a witness which renders his evidence worthy of belief. 

Witnesses testify under oath or affirmation and it is presumed that they are 

truthful but it is up to the trier of the facts to determine the witness’s 

ultimate credibility. Many times when witnesses testify there are 

contradictions, disagreements and inconsistencies in their testimony and the 

trier of the facts must decide who to believe. This involves general 

credibility. 

State v. Schecter, 47 Ohio App.2d 113, 119, 352 N.E.2d 617 (8th Dist.1974). 

{¶13} The trial judge was the trier of fact and determined that Bessert was a 

credible witness. As the trier of fact, the judge has the authority to believe or 

disbelieve either Bessert or Smith, or accept part of what a witness says and reject the 

rest. 

{¶14} We cannot substitute our own judgment for that of the trial judge. Therefore, 

we find that Smith’s convictions for felonious assault and domestic violence were not 

against the manifest weight of the evidence. Smith’s second assignment of error is 

overruled. 

IV. Ineffective Assistance of Counsel 

A. Standard of Review 

{¶15} “Reversal of a conviction for ineffective assistance of counsel requires a 

defendant to show that (1) counsel’s performance was deficient, and (2) the deficient 

performance prejudiced the defense.” State v. Jones, 8th Dist. Cuyahoga No. 102260, 

2016-Ohio-688, ¶ 14. 
{¶16} “Defense counsel’s performance must fall below an objective standard of 

reasonableness to be deficient in terms of ineffective assistance of counsel. See State v. 

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).” Id.

Moreover, the defendant must show that there exists a reasonable 

probability that, were it not for counsel’s errors, the results of the 

proceeding would have been different. State v. White, 82 Ohio St.3d 16, 

23, 693 N.E.2d 772 (1998). 

Id. 

{¶17} In addition, 

To establish ineffective assistance of counsel, a defendant must show (1) 

deficient performance by counsel, i.e., performance falling below an 

objective standard of reasonable representation, and (2) prejudice, i.e., a 

reasonable probability that but for counsel’s errors, the proceeding’s result 

would have been different. Strickland at 687-688, 694; Bradley at 

paragraphs two and three of the syllabus. 

Id. at ¶ 15. 

{¶18} Furthermore, 

In evaluating a claim of ineffective assistance of counsel, a court must give 

great deference to counsel’s performance. Strickland at 689. A reviewing 

court will strongly presume that counsel rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional 

judgment. State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 

2014-Ohio-2175, ¶ 69. Id. at ¶ 16. 

B. Law and Analysis 

{¶19} In his third assignment of error, Smith argues that he was deprived of the 

effective assistance of counsel, when trial counsel failed to object to inadmissible 

evidence that was unfairly prejudicial. 
When determining whether trial counsel’s failure to object constituted 

ineffective assistance of counsel, we must consider the fact [Smith] was 

tried before a judge. Even if the challenged testimony was improper, in a 

bench trial, the court is presumed to have considered only relevant, 

material, and competent evidence. (Citations omitted.) Accordingly, 

trial counsel’s failure to object could reflect an assumption that the trial 

court would not be affected by any inflammatory material. (Citations 

omitted.) 

State v. Stafford, 8th Dist. Cuyahoga No. 75739, 2000 Ohio App. LEXIS 912 (Mar. 9, 

2000). 

{¶20} First, Smith contests the fact that his counsel did not object when Bessert 

stated, 

“I think it was like he called me 1 or 2 in the morning wanting to come to 

the house. I was hesitant to it because of me leaving and him not wanting 

me to leave in the pattern of him getting abusive when he does drink, but he 

still needed a place, so I let him come back.” 

(Tr. 28.) 

{¶21} Bessert also testified as follows: 

[STATE]: And when was the next time you saw him? 

[BESSERT]: I don’t know if it was like 6 or 7 at night. He showed up 

with a pizza, and then he wanted to come back in the 

house. The only reason I was hesitant to let him back in 

was the night that he was there, he was being very 

aggressive, cornering me, trying to, you know, be violent. 

And with our past history of violence happening, I did not 

feel comfortable letting him in. 

[STATE]: Okay. 

[BESSERT]: And he didn’t have his key with him. 

[STATE]: Could you tell if he was drinking? 
[BESSERT]: Very much so. 

(Tr. 29.) 

{¶22} Smith argues that this testimony is prohibited by Evid.R. 404(B) and 405, 

which states, 

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It 

may, however, be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident. In criminal cases, the proponent of evidence to be 

offered under this rule shall provide reasonable notice in advance of trial, or 

during trial if the court excuses pretrial notice on good cause shown, of the 

general nature of any such evidence it intends to introduce at trial. 

Evid.R. 404(B). 

(A) Reputation or opinion. In all cases in which evidence of character or a 

trait of character of a person is admissible, proof may be made by testimony 

as to reputation or by testimony in the form of an opinion. On 

cross-examination, inquiry is allowable into relevant specific instances of 

conduct. 

(B) Specific instances of conduct. In cases in which character or a trait of 

character of a person is an essential element of a charge, claim, or defense, 

proof may also be made of specific instances of his conduct. 

Evid.R. 405. 

{¶23} However, “generally, prior bad acts by a defendant against the same victim 

are admissible in domestic violence cases to prove the defendant’s intent.” State v. 

Clay, 181 Ohio App.3d 563, 2009-Ohio-1235, 910 N.E.2d 14, ¶ 35 (8th Dist.). Bessert’s 

statements regarding “[Smith] getting abusive when he does drink” was admissible for 

other purposes such as proof that she had a reasonable basis to fear that Smith may cause 

physical harm to her. State v. Crowley, 2d Dist. Clark No. 2009 CA 65, 2009 Ohio App. 
LEXIS 5605 (Dec. 18, 2009). The court did not abuse its discretion when it allowed 

testimony of prior domestic violence in order to prove that the victim had a reasonable 

basis to fear that defendant would commit physical harm to her, as he had done in the 

past. The admission of evidence was not contrary to Evid.R. 404(B). Thus, Bessert’s 

statements were not prohibited by the rules of evidence, and their admittance did not 

prejudice him at trial. 

{¶24} Under Evid.R. 405, Bessert’s testimony was not used to prove specific 

instances of conduct or his character traits but used as proof that she had a reasonable 

basis to fear that Smith may cause physical harm to her as reasoned above. Therefore, 

we find that Bessert’s statements were not contrary to Evid.R. 405. 

{¶25} Smith also argues that his counsel was ineffective because counsel did not 

object to the testimonies of Officer Kluth and Det. Clayton, who both testified as to what 

Bessert told them about Smith’s attack on her. Smith contends that both testimonies are 

in violation of Evid.R. 802 because they are hearsay. “Hearsay is a statement, other than 

one made by the declarant while testifying at the trial or hearing, offered in evidence to 

prove the truth of the matter asserted.” Evid.R. 801(C). 

Hearsay is not admissible except as otherwise provided by the Constitution 

of the United States, by the Constitution of the State of Ohio, by statute 

enacted by the General Assembly not in conflict with a rule of the Supreme 

Court of Ohio, by these rules, or by other rules prescribed by the Supreme 

Court of Ohio. 

Evid.R. 802. 
{¶26} However, not all out-of-court statements constitute hearsay. “[W]here 

statements are offered to explain an officer’s conduct while investigating a crime, such 

statements are not hearsay.” State v. Blevins, 36 Ohio App.3d 147, 521 N.E.2d 1105 

(10th Dist.1987), citing State v. Thomas, 61 

Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). Both officers testified as to what Bessert 

told them to explain their conduct while investigating the incident as well as why Smith 

was arrested. Bessert informed Officer Kluth that she was hit with a chair leg. This 

statement directed Officer Kluth to collect the chair leg as evidence. Likewise, Det. 

Clayton was informed that Bessert was injured in the head by Smith. This statement 

directed Det. Clayton’s actions while investigating. 

{¶27} Appellant also argues that he was prejudiced because Bessert’s story was 

told three times, which had a major impact upon the factfinder and the final verdict. 

Evid.R. 404(B) states “[a]lthough relevant, evidence may be excluded if its probative 

value is substantially outweighed by considerations of undue delay, or needless 

presentation of cumulative evidence.” (Emphasis added.) It was determined that 

Officer Kluth’s and Det. Clayton’s testimony was properly admitted into evidence if 

relevant and of probative value in assisting the trier of fact in understanding their actions 

while conducting their investigations. The probative value outweighs any prejudice. 

Additionally, Evid.R. 403(B) does not require exclusion of cumulative evidence. The 

court has discretion to admit or exclude it. State v. Campbell, 69 Ohio St.3d 38, 51, 630 

N.E.2d 339 (1994). 
{¶28} Because this court has found Smith’s arguments with regard to his issues 

in his third assignment of error meritless, the cumulative error issue is also meritless. 

We find that their testimony was not contrary to the rules of evidence. 

{¶29} Lastly, Smith contends that his counsel was ineffective because counsel 

offered virtually no mitigating evidence to support a sentence of community control. 

The facts reveal that as counsel tried to offer evidence regarding Smith’s circumstances 

the court would respond that Smith failed to attend. Smith did not report for his 

presentence investigation report. Smith did not attend the interview for placement in 

veteran’s treatment court. Counsel did state that Smith had the support of family, that 

the victim moved to St. Louis, and that these events are not likely to reoccur. Defense 

counsel went on to request a continuance for sentencing in an effort to provide more 

information to the court regarding Smith that was denied. A court’s principal concern is 

not whether counsel should have presented a mitigation case, but whether the 

investigation supporting their decision not to introduce mitigating evidence of petitioner’s 

background was itself reasonable. State v. Herring, 7th Dist. Mahoning No. 03 MA 12, 

2004-Ohio-5357, ¶ 22. 

{¶30} Smith’s counsel’s decision to not provide mitigating evidence to support a 

sentence of community control is sound because Smith was found guilty of felonious 

assault, a second-degree felony. A minimum of two years must be served on a 

second-degree felony, not community control. See R.C. 2929.14(A)(2). 

Even assuming that counsel’s performance was ineffective, this is not 

sufficient to warrant reversal of a conviction. An error by counsel, even if 
professionally unreasonable, does not warrant setting aside the judgment of 

a criminal proceeding if the error had no effect on the judgment. To 

warrant reversal, 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. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome. In 

adopting this standard, it is important to note that the court specifically 

rejected lesser standards for demonstrating prejudice. 

State v. Gay, 8th Dist. Cuyahoga No. 86944, 2006-Ohio-3683, ¶ 35. 

{¶31} “Accordingly, to show that a defendant has been prejudiced by counsel’s 

deficient performance, the defendant must prove that there exists a reasonable probability 

that, were it not for counsel’s errors, the result of the trial would have been different.” 

Id. at ¶ 36. Smith does not make this showing. Therefore Smith’s counsel was not 

ineffective, and his third assignment of error is overruled. 

V. Inadmissible Evidence 

A. Standard of Review 

{¶32} “Generally, the decision whether to admit or to exclude evidence rests 

within the sound discretion of the trial court.” (Citation omitted.) State v. Doumbas, 

8th Dist. Cuyahoga No. 100777, 2015-Ohio-3026, ¶ 49. “Therefore, an appellate court 

that reviews the trial court’s decision with respect to the admission or exclusion of 

evidence must limit its review to a determination of 

whether the trial court committed an abuse of discretion.” (Citation omitted.) Id. 

“An abuse of discretion requires a finding that the trial court’s decision was unreasonable, 

arbitrary, or unconscionable.” State v. Minifee, 8th Dist. Cuyahoga No. 99202, 
2013-Ohio-3146, ¶ 23, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983). 

B. Law and Analysis 

{¶33} In Smith’s fourth assignment of error, he argues that the trial court 

committed critical errors in the trial, and the cumulative effect denied him due process of 

law and a fair trial. Specifically, Smith contends that the trial court improperly 

permitted inadmissible evidence that unfairly prejudiced him. This evidence includes 

Bessert’s testimony about her injuries, the chair leg Smith used to hit Bessert in the head, 

Bessert’s testimony about Smith’s prior behavior when intoxicated, and Officer Kluth and 

Det. Clayton’s testimony about their investigation. 

The Ohio Supreme Court has recognized the doctrine of cumulative error. 

See State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), 

paragraph two of the syllabus. Under this doctrine, a conviction will be 

reversed when the cumulative effect of errors in a trial deprives a defendant 

of a fair trial even though each of the numerous instances of trial-court error 

does not individually constitute cause for reversal. Id. at 196-197. See 

also State v Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 

132. Moreover, “errors cannot become prejudicial by sheer weight of 

numbers.” State v. Hill, 75 Ohio St.3d at 212, 661 N.E.2d 1068. 

State v. Singleton, 8th Dist. Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 64. 

{¶34} The doctrine of cumulative error is not applicable in this case. Smith 

makes blanket assertions that he was denied a fair trial by the cumulative effect of the 

errors made during the trial. However, he gives no analysis or explanation as to why or 

how the errors had a prejudicial cumulative effect. None of the errors committed in this 

case, when considered either individually or cumulatively, resulted in prejudicial error. 
As previously discussed under the other assignments of error, the jury could not ignore 

the direct evidence that established Smith’s guilt. 

{¶35} However we have found that there were no errors. “Further, where it is 

found that the trial court did not err, cumulative error is simply inapplicable.” Id. at ¶ 

66. Therefore, Smith’s fourth assignment of error is overruled. 

VI. Prosecutorial Misconduct 

A. Standard of Review 

{¶36} “A prosecuting attorney’s conduct during trial does not constitute grounds 

for error unless the conduct deprives the defendant of a fair trial.” (Citation omitted.) 

State v. York, 8th Dist. Cuyahoga No. 87814, 2006-Ohio-6934, ¶ 23. 

The touchstone of a due process analysis in cases of alleged prosecutorial 

misconduct is the fairness of the trial, not the culpability of the prosecutor. 

The effect of the prosecutor’s misconduct must be considered in light of the 

whole trial. 

Id. 

B. Law and Analysis 

{¶37} In Smith’s fifth assignment of error, he argues that the prosecution engaged 

in affirmative misconduct that denied him due process of law and deprived him of a fair 

trial. Specifically, Smith’s arguments are similar to the last two assignments of error. 

He alleges that the prosecution elicited hearsay testimony from Bessert, Officer Kluth, 

and Det. Clayton. We have already determined that their testimony did not constitute 

hearsay. However, 
[T]he alleged prosecutorial misconduct can only be a basis for reversal if it 

rises to the level of plain error. Crim.R. 52(B). Where the plain error 

analysis is used, the question is whether, absent prosecutorial misconduct, 

the result of the trial would have clearly been different. 

State v. Ferko, 8th Dist. Cuyahoga No. 88182, 2007-Ohio-1588, ¶ 24. 

{¶38} We find that the plain error analysis is not applicable here where the 

testimony did not constitute error and the result of the trial would not have clearly been 

different. Smith’s fifth assignment of error is overruled. 

VII. Improper Sentencing 

A. Standard of Review 

{¶39} “An appellate court must conduct a meaningful review of the trial court’s 

sentencing decision.” State v. Shepherd, 8th Dist. Cuyahoga No. 97962, 

2012-Ohio-5415, ¶ 78. 

An appellate court must review the record, including the findings 

underlying the sentence or modification given by the sentencing court. If 

an appellate court clearly and convincingly finds either that (1) the record 

does not support the sentencing court’s findings under R.C. 2929.14(C)(4), 

or (2) the sentence is otherwise contrary to law, then the appellate court may 

increase, reduce, or otherwise modify a sentence * * * or may vacate the 

sentence and remand the matter to the sentencing court for resentencing. 

Id. 

B. Law and Analysis 

{¶40} In Smith’s sixth assignment of error, he claims that the trial court erred in 

imposing a prison sentence instead of a community control sanctions. 

R.C. 2953.08 provides the grounds on which a defendant may appeal from a 

felony sentence. Under R.C. 2953.08(A)(4), a criminal defendant may 

appeal his sentence if it is contrary to law, and the statute provides two 
separate grounds for claiming that a sentence is contrary to law. State v. 

Bonds, 8th Dist. Cuyahoga No. 100481, 2014-Ohio-2766. First, a 

sentence is contrary to law if it falls outside the statutory range for the 

particular degree of offense. State v. Holmes, 8th Dist. Cuyahoga No. 

99783, 2014-Ohio-603,¶ 10. Second, a sentence is contrary to law if the 

trial court fails to comply with sentencing statutes. Id. Thus, a sentence 

is contrary to law if the court fails to consider the purposes and principles of 

felony sentencing set forth in R.C. 2929.11 and the sentencing factors set 

forth in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 

2013-Ohio-5025, ¶ 7. 

State v. Evans, 8th Dist. Cuyahoga No. 101485, 2015-Ohio-1022, ¶ 31. 

{¶41} Smith does not demonstrate that his sentence is contrary to law. He was 

found guilty of felonious assault, which is a second-degree felony. The statutory range 

for a second-degree felony is two to eight years imprisonment. R.C. 2929.14(A)(2). 

The trial court sentenced Smith to two years imprisonment, which is the minimum 

sentence he could receive for a second-degree felony. The record also reveals that the 

trial court did not fail to consider the purposes and principles of felony sentencing set 

forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12, which states, 

The sentencing court shall consider all of the following that apply regarding 

the offender, and any other relevant factors, as factors indicating that the 

offender is not likely to commit future crimes: 

(1) Prior to committing the offense, the offender had not been adjudicated 

a delinquent child. 

(2) Prior to committing the offense, the offender had not been convicted 

of or pleaded guilty to a criminal offense. 

(3) Prior to committing the offense, the offender had led a law-abiding 

life for a significant number of years. 

(4) The offense was committed under circumstances not likely to recur. 
(5) The offender shows genuine remorse for the offense. 

{¶42} Smith specifically argues that the court did not consider his lack of juvenile 

and adult criminal history or the fact that the offense is unlikely to occur again now that 

Bessert lives in St. Louis. However, the record reveals the following: 

[COURT]: All right. I am going to go ahead and sentence Mr. Smith at 

this time. I have considered all the principles and purposes 

of felony sentencing, all the appropriate recidivism and 

seriousness factors in this matter. I note that you’ve had 

extensive treatment for all of your issues, while you were 

capiased on this case, in New York. You completed 

successfully those programs. You came back to this area 

and decided to live, as you say, with a heroin addict, thief, 

with felony convictions. 

(Tr. 181.) 

 The court continued as follows: 

[COURT]: So as I was saying, at this point, you can’t comply with any 

directions when you’re not incarcerated. When you’re on your 

medication, when you’re off your medication, if you’ve had 

treatment or haven’t had treatment, I have great empathy for 

what you’re going through. I really do. At some point, you 

need to accept some responsibility. You’ve accepted very 

little, except you’re not making excuses for not showing up 

for court. If nothing else, you could have showed up on 

August 11th on your sentencing date. That would be the 

date to come in here and talk to [Counsel] and have this 

confusion figured out. And it’s just not credible what you 

are telling me. I heard the victim’s testimony, and she was 

credible to me. And she was injured, and there is no other 

explanation that I’ve heard other than you caused her that 

injury. I’m going to find that you’re not amenable to a 

community control sanction. 

(Tr. 182 and 183.) 
{¶43} We find that the trial court did not error in imposing a prison sentence 

instead of community control sanctions. Smith’s sentence was not contrary to law, and the 

trial court considered the purposes and principles of felony sentencing set forth in R.C. 

2929.11 and the sentencing factors set forth in R.C. 2929.12. Smith’s sixth assignment 

of error is overruled. 

{¶44} Judgment is affirmed. 

It is ordered that the appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

____________________________________ 

ANITA LASTER MAYS, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

MARY J. BOYLE, J., CONCUR