[Cite as State v. R.S.M., 2023-Ohio-4288.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 22AP-323

v. : (C.P.C. No. 20CR-2583)

[R.S.M.], : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on November 21, 2023 

On brief: G. Gary Tyack, Prosecuting Attorney, and

Michael A. Walsh, for appellee.

On brief: Yeura R. Venters, Public Defender, and Leon J. 

Sinoff, for appellant. 

APPEAL from the Franklin County Court of Common Pleas

LELAND, J.

{¶ 1} Defendant-appellant, R.S.M., appeals from a judgment of conviction and 

sentence entered by the Franklin County Court of Common Pleas, pursuant to a jury trial

that found him guilty of one count of assault, a misdemeanor of the first degree, and one 

count of domestic violence, a felony of the fourth degree. 

I. Facts and Procedural History

{¶ 2} On June 15, 2020, appellant was indicted on two counts of domestic violence 

in violation of R.C. 2919.25, both charged as felonies of the fourth degree. In Count 1, 

prosecutors indicted appellant for domestic violence involving M.V., his girlfriend at the 

time. Before trial, however, prosecutors agreed to amend Count 1 from domestic violence 

to the lesser-included offense of assault, a misdemeanor of the first degree. In Count 2, 

prosecutors indicted appellant for domestic violence involving M.M., appellant’s
No. 22AP-323 2

biological daughter. The record reveals that, on February 19, 2009, the Franklin County 

Municipal Court sentenced appellant to a suspended jail term of 90 days and 2 years of 

community control after he pled guilty to attempted assault pursuant to R.C. 2923.02 and 

2903.13. The parties stipulated to appellant’s prior conviction for attempted assault 

involving a family or household member. The present charges arose from a violent 

dispute in appellant’s home in the early morning hours of May 20, 2020 involving 

appellant, M.V., and M.M. Appellant pled not guilty, and the matter proceeded to trial by 

jury. The following evidence was presented at trial.

{¶ 3} In May 2020, appellant resided on Vanderberg Avenue in the Hilltop 

neighborhood of Columbus, Ohio. Appellant shared custody of his two biological 

children, one of which was M.M. M.V. and appellant had been dating for nearly two 

months prior to May 20, 2020, and M.V. was staying over at appellant’s house for the 

night. Five children were present in the house at the time of the domestic violence 

incident: appellant’s two biological children, appellant’s stepdaughter, and M.V.’s two

children. 

{¶ 4} Appellant learned on May 19, 2020 that his grandmother had passed away. 

Upon learning of her death, appellant was “pretty upset” because he had a “pretty close 

connection with her.” (Tr. Vol. III at 13.) Appellant spent part of that day meeting with 

family to discuss funeral arrangements and other matters pertaining to the death of his 

grandmother. When appellant came home, he and M.V. went to the grocery store to pick 

up supplies to make ice cream sundaes with the children. Appellant also bought a bottle 

of absinthe. 

{¶ 5} At this point, the testimony of M.V. and appellant began to diverge. M.V. 

claimed that upon returning from the grocery store, appellant started “drinking out of the 

bottle” of absinthe, “and he was getting a little drunk.” (Tr. Vol. II at 35.) She testified he 

was “chugging out of the bottle.” (Tr. Vol. II at 35.) M.M. in her testimony corroborated 

M.V.’s claim that appellant was drinking straight from the bottle and was acting “tipsy 

and wobbly.” (Tr. Vol. II at 150.) M.V. recounted appellant then left the home to smoke 

a cigarette and shortly thereafter she heard appellant’s motorcycle start up by the garage 

outside. M.V. described the conditions outside as “all the way dark” and “raining.” (Tr. 

Vol. II at 37.) According to M.V., she had never taken appellant’s motorcycle out before 

because it had “a bunch of things wrong with it.” (Tr. Vol. II at 37.) M.V. did not think it 
No. 22AP-323 3

was a good idea for appellant to take the motorcycle out because “he was a little bit 

inebriated,” it was raining, and the motorcycle was not in good riding condition. (Tr. Vol. 

II at 38.) Due to her worry that appellant would “hurt[] himself or * * * hurt[] somebody 

else,” M.V. tried to convince appellant to stay home instead, but he was “adamant” and 

went out for a ride. (Tr. Vol. II at 38.)

{¶ 6} Appellant, on the other hand, claimed M.V. was the first one to take a drink

after they returned from the grocery store. He testified he poured two shots of absinthe, 

one for M.V. and one for himself. According to appellant, M.V. took the shot, but because 

he “was already upset, emotional,” he “decided not to take the shot and left.” (Tr. Vol. III 

at 14.) Appellant later testified he had actually refilled M.V.’s shot glass with absinthe 

before leaving, so the two shot glasses sat out until he returned from his motorcycle ride. 

In contrast to M.V.’s testimony that it was raining, appellant stated although “it had been 

raining previously, * * * it was not raining.” (Tr. Vol. III at 15.) He also testified, again 

contrary to M.V.’s testimony that it was completely dark outside, “[t]he sun was going 

down. It was starting to get dark out.” (Tr. Vol. III at 15.) From video evidence in the 

record, appellant was outside starting up his motorcycle at approximately 9:01 p.m. 

Appellant claimed M.V. tried to stop him “[m]ultiple times” by getting in his way and 

“blocking the entrance to the hallway to get out.” (Tr. Vol. III at 18.) Appellant “walked 

around” M.V. and went for a ride, returning at approximately 9:28 p.m. (Tr. Vol. III at 

18.)

{¶ 7} When appellant returned from his motorcycle ride, M.V. claimed “the 

alcohol had fully kicked in” and he was now “drunk.” (Tr. Vol. II at 39.) M.V. recounted 

how appellant tried to use the restroom but instead fell “inside the tub,” prompting her to 

“pick him up out of the tub.” (Tr. Vol. II at 39.) Around the same time, appellant was

repeatedly “swigging out of the bottle” of absinthe, rebuffing M.V.’s attempts to curb his 

drinking. (Tr. Vol. II at 39.) Although appellant claimed he drank two shots of absinthe 

upon returning from his ride, and that those were the first drinks he had that evening, he 

also admitted the absinthe “was very strong” and “hit [him] pretty fast.” (Tr. Vol. III at 

22-23.)

{¶ 8} Appellant testified he forgot to close the back gate when he returned home 

and noticed a husky had followed him into the backyard. Appellant said he went outside

and, confirming the dog was wearing a collar and tag, let the husky into the home. 
No. 22AP-323 4

According to M.V., appellant then let his own dog, a “pit mix of some sort,” out of its cage 

over M.V.’s protestations, resulting in a “ruckus” with the two dogs fighting each other. 

(Tr. Vol. II at 40, 41.) After initially moving her children away from the fighting, the dogs 

were separated and M.V. put the husky outside. M.V. stated appellant then began crying 

and yelling about his grandmother and “just going off like that. He was drunk.” (Tr. Vol. 

II at 42.) M.V. claimed appellant, upset about the husky being put outside, ventured 

outside on foot without notifying M.V. or any of the children. Both M.V. and appellant’s 

daughter worried where appellant had gone and attempted to call his cell phone 

numerous times, but he did not answer. 

{¶ 9} When appellant returned to the house, M.V. said he was “super angry,” 

“super drunk,” “stumbling around the house,” and “yelling obscenities.” (Tr. Vol. II at 

43.) M.V. claimed appellant was alternating between yelling at her to leave the house and 

pleading with her to stay. Appellant confirmed in his testimony that at some point, he 

told her to “get out,” and at another other point he told her if she loves him, she could 

come back. (Tr. Vol. III at 32.) At one point, she decided to leave with her two children. 

When she walked out the door, appellant said he “started crying” and “punch[ed] the wall 

as soon as she le[ft],” breaking his hand. (Tr. Vol. III at 26.) M.M. testified that after M.V. 

left, she and her siblings were “scared because [appellant] was drinking.” (Tr. Vol. II at 

154.) M.V. brought her children to the car, but upon reentering to grab her cell phone 

charger, she saw appellant lying face down in the hallway, “sobbing,” with two of his 

children “trying to wipe his face.” (Tr. Vol. II at 47.) M.V. decided against leaving 

appellant’s children alone with him, so she attempted to get appellant and the children to 

bed. 

{¶ 10} M.V. testified that she and appellant walked into the bedroom and 

appellant immediately closed and locked the door, took off all his clothes, and got into 

bed. In contrast, appellant claimed he “think[s]” M.V. locked the door, but he is “not a 

hundred percent sure.” (Tr. Vol. III at 33.) Appellant said he “think[s]” he was lying in 

bed, arguing with M.V., and he could not recall whether he was wearing any underwear. 

(Tr. Vol. III at 34.) He also stated he did not “think [he] had any clothes on.” (Tr. Vol. III 

at 34.) Appellant testified he asked M.V. to leave the bedroom multiple times, but she 

refused and in fact blocked his exit from the bedroom. In M.V.’s telling, appellant began 

violently grabbing M.V. in an effort to initiate sex; he pulled at her, tried to put his hands 
No. 22AP-323 5

around her throat, spit at her, tried to bite her, pulled at her shirt, and pulled her pants 

around her ankles. She attested that she resisted, which further angered appellant and 

caused him to begin “destroying the room,” including smashing a lamp. (Tr. Vol. II at 51.)

{¶ 11} In appellant’s telling, M.V. blocked his exit from the bedroom and threw 

him against the wall, causing him to “get upset” and “yell at her to get the f*** out.” (Tr. 

Vol. III at 35.) Appellant admitted he smashed the lamp against the wall because he was 

“frustrated” and “felt like [he] was going to get attacked by [M.V.].” (Tr. Vol. III at 35.) 

He said he “tried to walk out of the bedroom door again,” but M.V. grabbed him and threw 

him down onto the bed, holding him down. (Tr. Vol. III at 35.) Appellant described the 

ensuing struggle as “a wrestling match” in which he tried to get her off him and exit the 

bedroom.(Tr. Vol. III at 36.) Appellant claimed he did not pull M.V.’s pants off, but rather 

that “[s]he pulled her own pants off.” (Tr. Vol. III at 34.) Appellant testified that M.V. 

stuck “her head out the door and talk[ed] to [M.M.] and sa[id] call 911, call 911” after M.M. 

had yelled from outside of the door that she was going to call the police. (Tr. Vol. III at 

36.)

{¶ 12} M.V. described this moment differently. She heard the children panicking 

outside the bedroom door. The children managed to unlock the bedroom door, cracking

it open at the same time appellant began “charging” toward the door. (Tr. Vol. II at 53.) 

M.V., worried appellant might injure the children, blocked appellant and tried to “push 

him back against the wall.” (Tr. Vol. II at 53.) M.V. recalled appellant then pushed her

through the closet door. At this time, M.M. entered the room holding a telephone. As the 

children yelled at the adults to stop, M.V. was able to close the door, leaving only M.M 

still inside the bedroom with M.V. and appellant. M.M. asked whether she should call the 

police, and M.V. responded affirmatively. 

{¶ 13} M.V. next recalled how appellant charged at her again, but this time she was 

able to dodge his advance. She stated appellant crashed into a wall mirror, shattering it 

and falling onto the floor, giving M.M. a chance to escape from the bedroom. Appellant 

claims he was “pushed” and “shoved,” causing him to fall “back into the glass mirror.” 

(Tr. Vol. III at 38.) According to appellant, the children had “already made the 

assumption before they even came in that [appellant] was the aggressor.” (Tr. Vol. III at 

40.)
No. 22AP-323 6

{¶ 14} M.M. recounted how, after M.V. and appellant had gone to the bedroom 

together, the children were watching TV in the living room. They heard a loud thump, 

concerning them, and when they heard M.V. scream, all the children “ran back to the back 

bedroom.” (Tr. Vol. II at 155.) While the children knocked and banged on the door, M.V. 

was “screaming for help.” (Tr. Vol. II at 155.) M.M. procured a spare key and successfully 

unlocked the bedroom door, but only she was able to gain entry because appellant was

“pushing on the door, trying to get [the children] out.” (Tr. Vol. II at 156.) Once M.M. 

was inside the bedroom, she saw M.V. up against a wall with appellant “sort of on top of 

her” and he was “trying to hit” M.V. with his fists. (Tr. Vol. II at 156.) Once M.M. and 

M.V. got the bedroom door open, M.M. escaped and was instructed by M.V. to call 911. 

M.M. then grabbed her phone and called 911 “several times.” (Tr. Vol. II at 157.)

{¶ 15} Next, appellant testified how he tried to “get [M.M.’s] phone to try to stop 

her from calling.” (Tr. Vol. III at 40.) Appellant said he went searching for M.M. and 

eventually found her in another bedroom. Thinking she “had the phone in her hand,” 

appellant says he attempted to “grab the phone,” but tripped over toys strewn about on 

the ground and fell “on top of [M.M.].” (Tr. Vol. III at 41.) Appellant relays how he was 

“sprawled out,” “laying down on top of [M.M.], on top of the toy box.” (Tr. Vol. III at 42.) 

He described her position as “laying on the toy box, on her back and up to her neck, and 

her head up against the wall.” (Tr. Vol. III at 42.) Appellant recounted how his young 

son jumped on top of his head, “screaming.” (Tr. Vol. III at 42.) He also said he heard 

[M.M.] “screaming” at him to get off her. (Tr. Vol. III at 42.) He then recounted M.V. 

running in, pushing appellant’s son off appellant, and holding appellant to the ground 

while the children ran out of the room. Appellant testified he never had his hands around 

M.M.’s throat. He assumed the scratch on M.M.’s neck came “from the toys when we fell 

into them.” (Tr. Vol. III at 42.)

{¶ 16} In M.M.’s recollection of this encounter, as she began calling the police, 

appellant looked at M.M., got up off M.V., and “chas[ed] after [M.M.], screaming at [her].” 

(Tr. Vol. II at 157.) M.M. thought appellant “looked very angry.” (Tr. Vol. II at 157.) M.M. 

stated she ran into the office, and, knowing appellant was after the phone, threw the 

phone into a corner of the room. Appellant continued chasing M.M. into the back corner 

of the room, against the wall. M.M. had her back up against toys with her head on the 

wall while appellant “put[] his hands around [her] neck” with a “pretty tight grip” on her 
No. 22AP-323 7

neck. (Tr. Vol. II at 159.) M.M. said appellant squeezed her neck “[p]retty hard,” and as 

a result she was “[n]ot really” able to breathe; she felt “nauseous” and “was gasping for 

air.” (Tr. Vol. II at 160.) M.M. believed she “was going to die.” (Tr. Vol. II at 161.) 

Although M.M. said she did not remember what appellant was saying at the time, she 

remembers he was “screaming.” (Tr. Vol. II at 161.) About ten seconds later, M.M.’s 

brother ran in the room and began “hitting [appellant] repeatedly on his back,” causing 

appellant to momentarily loosen his grip on M.M.’s neck and allowing her to “get a little 

bit of air.” (Tr. Vol. II at 159.) Then, M.M. testified that M.V. came in and “jump[ed] on 

[appellant’s] back,” knocking and pinning appellant to the ground. (Tr. Vol. II at 159.) At 

this point, M.M. and the other children ran outside and went to the neighbor’s front door. 

The children waited in the neighbor’s yard until M.V. emerged from the house and put 

them all inside the car to wait for police to arrive.

{¶ 17} In M.V.’s recounting, appellant chased after M.M. while M.V. stayed behind 

to put her pants back on. After checking on some of the other children who had gathered 

in the kitchen, M.V. searched for appellant and M.M. When M.V. found them in another 

room, she testified she saw appellant had M.M. pinned “against the wall” with both hands

“on her throat.” (Tr. Vol. II at 55.) M.V. stated M.M. had one hand on appellant’s throat

while appellant’s son was “hitting him, telling him to stop, that he’s killing her.” (Tr. Vol. 

II at 55.) M.V. stated M.M. at this point was “not speaking a word,” and, with “tears rolling 

down her eyes,” she mouthed the words “help me.” (Tr. Vol. II at 55.) M.V. said appellant 

“was naked on top of [M.M.], choking her out.” (Tr. Vol. II at 56.)

{¶ 18} After a slight hesitation due to her disbelief at what she was witnessing, 

M.V. said she “charged [appellant] and knocked him onto the floor.” (Tr. Vol. II at 56.) 

She held him to the floor and directed the children to go outside; once they were gone, 

she got off appellant and shut him in the room, where he remained “screaming, crying, 

[and] wailing” to be let out. (Tr. Vol. II at 56.) Once he fell silent, M.V. recounted running 

outside, yelling for the children who had gone to the neighbor’s yard, and locking them in 

her car. M.V. then reentered the house to retrieve her cell phone and car keys, where she 

encountered appellant face down on the bed, “naked, screaming[,] and crying.” (Tr. Vol. 

II at 58.) She then “ran out of the house” and called police again. (Tr. Vol. II at 58.) M.V. 

testified that she and the children waited in the car for police to arrive. As they waited 
No. 22AP-323 8

in the car, M.V. observed M.M. had marks on her neck and described her demeanor as 

“really quiet” and “crying.” (Tr. Vol. II at 65-66.)

{¶ 19} The state also called as a witness Darrel Kerns, a Columbus police officer 

who responded to the 911 calls placed from appellant’s house that night (“Officer Kerns”). 

Officer Kerns was on duty with Officer Lucas Metz. When they arrived, Officer Kerns 

observed M.M. was “visibly upset, shaking, [and] crying” and had “some small scrapes 

and lacerations” on her neck. (Tr. Vol. II at 131.) Upon entering the home, the officers 

found appellant “passed out in the bedroom,” “fully naked.” (Tr. Vol. II at 131, 132.) 

Officer Kerns observed appellant was highly intoxicated based on his inability to wake up, 

his unsteadiness on his feet, and the “[s]trong smell of alcohol.” (Tr. Vol. II at 132.) The 

officers attempted to conduct an interview of appellant, but because of his state of 

intoxication, “the interview just didn’t go anywhere.” (Tr. Vol. II at 134.) The police 

interview of M.V. aligned with the testimony she provided to the trial court. 

{¶ 20} After witness testimony, the attorneys made closing statements and the 

trial court submitted the case to the jury. The jury deliberated and found appellant guilty 

of assault and domestic violence. The jury also found appellant was previously convicted 

of, or pled guilty to, attempted assault involving a family or household member. After a 

sentencing hearing, the trial court sentenced appellant to four to six months in the 

Franklin County Community Based Correctional Facility and four years of community 

control. Appellant timely appeals.

II. Assignments of Error

{¶ 21} Appellant presents the following three assignments of error for our review:

I. By Failing to Require the Jury to Find Beyond a Reasonable 

Doubt that Defendant’s Prior Conviction for Attempted 

Assault Was an Offense of Violence, the Jury Was Relieved of 

its Duty to Find Every Essential Element of Count Two, in 

Violation of [Appellant’s] Constitutional Rights. 

II. Defense Counsel’s Failure to Properly Cross-Examine 

[M.V.] on her Prior Inconsistent Statement to Detectives, 

Which Supported [Appellant’s] Defense of Accident as to 

Count Two, Constituted Ineffective Assistance of Counsel.

III. Appellant’s Convictions Are Against the Manifest Weight 

of the Evidence.
No. 22AP-323 9

III. Analysis

A. First Assignment of Error

{¶ 22} In his first assignment of error, appellant contends the trial court erred in 

failing to instruct the jury to find that his prior conviction for attempted assault was an 

offense of violence.

{¶ 23} Generally, a criminal defendant “ ‘ “is entitled to have the jury instructed on 

all elements that must be proved to establish the crime with which he is charged.” ’ ” State 

v. D.H., 10th Dist. No. 16AP-501, 2018-Ohio-559, ¶ 43, quoting State v. Jennings, 10th 

Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 98, quoting State v. Adams, 62 Ohio St.2d 151, 

153 (1980). “ ‘[T]here is a strong presumption in favor of the propriety of jury 

instructions. Instructions which, in their totality, are sufficiently clear to permit the jury 

to understand the relevant law shall not be the cause of a reversal upon appeal.’ ” State 

v. Calderon, 10th Dist. No. 05AP-1151, 2007-Ohio-377, ¶ 54, quoting Arthur Young & Co. 

v. Kelly, 88 Ohio App.3d 343, 350 (10th Dist.1993). “A jury instruction must ‘present a 

correct, pertinent statement of the law that is appropriate to the facts’ of the case.” State 

v. Daniels, 10th Dist. No. 18AP-626, 2019-Ohio-1791, ¶ 4, quoting State v. White, 142 

Ohio St.3d 277, 2015-Ohio-492, ¶ 46. “ ‘Whether jury instructions correctly state the law 

is a question of law that an appellate court reviews de novo.’ ” D.H. at ¶ 43, quoting

Calderon at ¶ 55; see also Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 

257, 2015-Ohio-229, ¶ 22 (“The question of whether a jury instruction is legally correct 

and factually warranted is subject to de novo review.”).

{¶ 24} “On appeal, a party may not assign as error * * * the failure to give any 

instructions unless the party objects before the jury retires to consider its verdict, stating 

specifically the matter objected to and the grounds of the objection.” Crim.R. 30(A). An 

appellant that fails to object as required by Crim.R. 30(A) waives the issue on appeal 

absent plain error in the jury instructions. State v. Huish, 10th Dist. No. 21AP-255, 2023-

Ohio-365, ¶ 55, citing State v. McCown, 10th Dist. No. 06AP-153, 2006-Ohio-6040, ¶ 36. 

“Plain errors or defects affecting substantial rights may be noticed although they were not 

brought to the attention of the court.” Crim.R. 52(B). “Notice of plain error under

Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances 
No. 22AP-323 10

and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91,

97 (1978).

{¶ 25} The trial court instructed the jury in the present case as follows:

If the State proved beyond a reasonable doubt that the 

defendant is guilty of Domestic Violence, you must make 

an additional factual finding. You must then separately 

consider whether the State proved beyond a reasonable doubt 

that the defendant was previously convicted of Attempted 

Assault involving a victim who was a family or household 

member, on or about February 19, 2009 in Franklin County 

Municipal Court.

This evidence was received because a prior conviction is an 

element of the domestic violence offense charged.

(Emphasis sic.) (Final Jury Instructions at 7-8.) Appellant argues the trial court should 

have further instructed the jury to determine whether appellant’s previous conviction of 

attempted assault was an offense of violence under R.C. 2919.25(D)(3), as that 

determination is a prerequisite to enhancing appellant’s charge from a misdemeanor to a 

felony. See R.C. 2919.25. Appellant did not object to the jury instructions at trial, so we 

review this alleged defect in the trial court’s jury instructions for plain error. 

Crim.R. 52(B). Juries, as factfinders, are responsible for assessing the credibility of 

witnesses and facts presented to them, whereas the trial court in a jury trial is responsible 

for establishing and explaining to the jury the legal parameters in which the case operates. 

R.C. 2945.11. Determining whether a criminal offense is an offense of violence pursuant 

to R.C. 2919.25(D)(3) is a matter of law. See State v. Johnson, 5th Dist. No. CT99-0005

(Dec. 2, 1999) (“[W]e find felonious assault is an ‘offense of violence’ contemplated by 

R.C. 2923.13. The trial court was entitled to make this determination as a matter of law.”). 

Accordingly, it is the responsibility of the trial court itself rather than the jury to decide 

whether a defendant’s prior conviction was an offense of violence under 

R.C. 2919.25(D)(3).

{¶ 26} Here, the trial court did not err by omitting this purely legal question from 

the jury instructions. It properly instructed the jury to determine a factual question—

whether appellant was previously convicted of attempted assault. The jury unanimously 

found appellant was “previously convicted of, or pled guilty to, Attempted Assault 

involving a victim who was a family or household member on or about February 19, 2009
No. 22AP-323 11

in Franklin County Municipal Court.” (Apr. 7, 2022 Verdict - 2(B) at 2.) Whether 

appellant’s prior conviction for attempted assault is an offense of violence was a statutory 

question, and the trial court therefore correctly omitted the issue from the jury 

instructions. We thus find no error, let alone plain error, in the trial court’s jury 

instructions regarding appellant’s prior conviction for attempted assault.

{¶ 27} Accordingly, appellant’s first assignment of error is overruled.

B. Second Assignment of Error

{¶ 28} In his second assignment of error, appellant contends he received 

ineffective assistance of counsel when his defense counsel failed to cross-examine M.V. 

on a purported prior inconsistent statement she made to detectives before trial.

{¶ 29} In order to compel the reversal of his conviction on grounds of ineffective 

assistance of counsel, appellant must affirmatively prove his case satisfies a two-part test

established by the United States Supreme Court. See Strickland v. Washington, 466 U.S. 

668, 687-98 (1984). The Supreme Court of Ohio later adopted the Strickland test to 

determine whether an attorney's representation was ineffective. See State v. Bradley, 42 

Ohio St.3d 136, 142 (1989). Only after appellant satisfies both parts of the Strickland test 

may an appellate court resolve whether his conviction “resulted from a breakdown in the 

adversary process that renders the result unreliable.” Strickland at 687.

{¶ 30} The first part of the Strickland test requires appellant to “show that 

counsel's performance was deficient.” Id. at 687. Deficient performance means

representation so “objectively unreasonable” that it “deviat[es] from the acceptable range 

of professionally competent assistance.” Huish at ¶ 92, citing Strickland at 687. “Judicial

scrutiny of counsel’s performance must be highly deferential.” Strickland at 689. Due to 

the challenges of reviewing an attorney’s performance at trial, “a court must indulge a 

strong presumption that counsel’s conduct falls within the wide range of reasonable 

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

under the circumstances, the challenged action ‘might be considered sound trial 

strategy.’ ” Id., quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).

{¶ 31} The second part of the Strickland test requires appellant to show “the 

deficient performance prejudiced the defense” and deprived appellant of a fair

trial. Strickland at 687. Appellant must demonstrate “a reasonable probability that, but 

for counsel's unprofessional errors, the result of the proceeding would have been 
No. 22AP-323 12

different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.” Id. at 694.

{¶ 32} While cross-examining Officer Kerns during trial, appellant’s counsel asked 

about statements purportedly made by M.V. during a police interview. Appellant’s 

counsel asked whether M.V. told Officer Kerns that appellant “had his hands forward and 

did grab [M.M.] by the neck, but he was so inebriated, he stumbled and fell forward on 

top of [M.M.],” to which Officer Kerns responded he did not remember any such 

statement. (Tr. Vol. II at 138.) The prosecution later clarified the statement referenced 

by appellant’s counsel came from a police interview conducted by Detective Anthony 

Monturo, so appellant’s counsel had mistakenly asked Officer Kerns about a conversation 

to which he was not privy. Appellant argues his counsel should have confronted M.V. 

about her statement to Detective Monturo because, in his mind, it corroborated 

appellant’s testimony and could have changed the outcome of the trial. But that brief 

exchange with Officer Kerns was the extent of the evidence adduced at trial regarding 

M.V.’s police interview with Detective Monturo. Appellant’s counsel did not call Detective 

Monturo to testify, nor did she ask M.V. about statements she made during that interview.

{¶ 33} The only information available in the record about Detective Monturo’s

interview of M.V. are the questions posed by counsel to Officer Kerns—and such 

questioning merely confirms Detective Monturo interviewed M.V. on May 28, 2020. The 

record is simply not complete enough to verify anything M.V. allegedly told Detective 

Monturo. As such, statements M.V. made could have been either helpful or detrimental 

to appellant’s defense. Without a more complete record, we simply do not know. Viewing 

trial counsel’s conduct in a highly deferential light, we cannot say the conduct at issue 

here was deficient under the Strickland standard. It is entirely possible the decisions not 

to call Detective Monturo to testify and not to cross-examine M.V. about statements she 

made during that interview were strategic decisions intended to prevent prejudicial 

information from reaching the jury. “ ‘Trial counsel need not cross-examine every 

witness. The strategic decision not to cross-examine witnesses is firmly committed to trial 

counsel’s judgment.’ ” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 216, quoting 

State v. Otte, 74 Ohio St.3d 555, 565 (1996). In light of such discretion, “decisions 

regarding cross-examination * * * do not form the basis for a claim of ineffective 

assistance of counsel.” State v. Harris, 10th Dist. No. 09AP-578, 2010-Ohio-1688, ¶ 28, 
No. 22AP-323 13

citing State v. Flors, 38 Ohio App.3d 133, 139 (8th Dist.1987), and State v. Woods, 4th 

Dist. No. 09CA3090, 2009-Ohio-6169, ¶ 25. Thus, under the first part of the Strickland

test, appellant’s assertion that his trial counsel’s representation was deficient for failing

to inquire further into M.V.’s statements made during the May 28, 2020 police interview

is without merit.

{¶ 34} Even had the conduct of appellant’s counsel at trial been deficient, 

appellant has not demonstrated how the failure to elicit more evidence from the May 28, 

2020 police interview with M.V. prejudiced him. In the statement at issue, appellant’s 

counsel claimed M.V. stated appellant “had his hands forward and did grab [M.M.] by the 

neck” before allegedly stumbling forward due to his inebriation. (Tr. Vol. II at 138.) For 

the purposes of determining guilt under R.C. 2919.25, it is inapposite whether, after 

appellant grabbed M.M.’s throat, he pinned her against the wall intentionally or via a 

drunken stumble. The act of grabbing his daughter’s throat is sufficient to prove he 

“knowingly cause[d] * * * physical harm to a family or household member,” and M.V.’s 

purported statement to Detective Monturo would readily clear that threshold. 

R.C. 2919.25(A). Even if it had been alleged appellant grabbed his daughter’s throat 

recklessly, rather than knowingly, that too would have been sufficient to support a 

conviction for domestic violence. See R.C. 2919.25(B). Appellant does not adequately 

explain how revealing such information to the jury would have aided in his defense. Thus,

under the second part of the Strickland test, failure of appellant’s counsel to conduct 

further questioning into the May 28, 2020 police interview did not prejudice appellant.

{¶ 35} Accordingly, appellant’s second assignment of error is overruled.

C. Third Assignment of Error

{¶ 36} In his third assignment of error, appellant contends his convictions are 

against the manifest weight of the evidence.

{¶ 37} “ ‘[T]he criminal manifest weight of the evidence standard addresses the 

evidence's effect of inducing belief,’ ” requiring this court “to determine whether the 

state's evidence or the defendant's evidence was more persuasive.” State v. Zhu, 10th 

Dist. No. 21AP-10, 2021-Ohio-4577, ¶ 33, quoting State v. Cassell, 10th Dist. No. 08AP1093, 2010-Ohio-1881, ¶ 38. An appellate court in determining whether a conviction is 

against the manifest weight of the evidence reviews the entire record, “ ‘weighs the 

evidence and all reasonable inferences, considers the credibility of witnesses and 
No. 22AP-323 14

determines whether[,] in resolving conflicts in the evidence, the jury clearly lost its way 

and created such a manifest miscarriage of justice that the conviction must be reversed 

and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1997). We will reverse a conviction on

manifest weight grounds only “in the most exceptional case where the evidence weighs 

heavily against the conviction.” Zhu at ¶ 33, citing Cassell at ¶ 40.

{¶ 38} In conducting a manifest weight review, an appellate court must “ ‘afford 

great deference to the jury’s determination of witness credibility.’ ” Starling v. Ohio Dept. 

of Dev. Disabilities, 10th Dist. No. 21AP-345, 2022-Ohio-2225, ¶ 15, quoting State v. 

Albert, 10th Dist. No. 14AP-30, 2015-Ohio-249, ¶ 14. The trial court as finder of fact, 

whether jury or judge, is indisputably in the best position “ ‘to view the witnesses and 

observe their demeanor, gestures[,] and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.’ ” State v. Cattledge, 10th Dist. No. 

10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 

80 (1984). “ ‘Mere disagreement over the credibility of witnesses is not a sufficient reason 

to reverse a judgment on manifest weight grounds.’ ” Zhu at ¶ 34, quoting State v. Harris, 

10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 25.

{¶ 39} In order for appellant to be found guilty of assault against M.V., the state 

had to prove appellant “knowingly cause[d] or attempt[ed] to cause physical harm” to 

M.V. R.C. 2903.13(A). “[S]erious physical harm” to M.V. caused recklessly is also 

sufficient to justify a conviction for assault. R.C. 2903.13(B). Similarly, in order for

appellant to be found guilty of domestic violence against M.M., the state had to prove

appellant “knowingly cause[d] or attempt[ed] to cause physical harm” to M.M. 

R.C. 2919.25(A). “[S]erious physical harm” to M.M. caused recklessly is also sufficient to 

justify a conviction for domestic violence. R.C. 2919.25(B). 

{¶ 40} Appellant contends his convictions for assault and domestic violence are

against the manifest weight of the evidence. Essentially, appellant asserts the jury should 

have given more weight to his testimony than the testimonies of M.V. and M.M. “A 

conviction is not against the manifest weight of the evidence because the trier of fact 

believed the state’s version of events over the appellant’s version.” State v. McCrary, 10th 

Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 16, citing State v. Neff, 10th Dist. No. 09AP-360, 

2009-Ohio-6846, ¶ 18. Simply put, by its decision to convict appellant for assault and 
No. 22AP-323 15

domestic violence, the jury chose to disbelieve appellant and instead to believe the 

accounts of M.V. and M.M. The record is replete with evidence to support the jury’s 

conclusions, and for that reason, this is certainly not one of those “exceptional case[s]” in 

which “the evidence weighs heavily against the conviction.” Zhu at ¶ 33, citing Cassell at 

¶ 40. Thus, this court affords great deference to the jury’s credibility determinations and 

concludes appellant’s convictions for assault and domestic violence are not against the

weight of the evidence.

{¶ 41} Accordingly, appellant’s third assignment of error is overruled.

IV. Conclusion

{¶ 42} For the foregoing reasons, we overrule appellant’s three assignments of 

error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed. 

JAMISON and BOGGS, JJ., concur.