[Cite as State v. Szarell , 2019-Ohio-5175.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : DUSTIN D. SZARELL : Case No. 2019 CA 00028 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2018 CR 00924

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 9, 2019

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JENNY GONZALEZ-WELLS JAMES ANZELMO 20 South Second Street 446 Howland Drive Fourth Floor Gahanna, OH 43230 Newark, OH 43055Licking County, Case No. 2019 CA 00028 2

Wise, Earle, J. {¶ 1} Defendant-Appellant Dustin D. Szarell appeals the April 4 , 2019 judgement of conviction and sentence of the Court of Common Pleas of Lick ing County, Ohio. Plaintiff-Appellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On December 11, 2018, appellant and his wife Danielle wen t to Reynoldsburg to visit Danielle's mother Luan Smith. Danielle wa s 8 months pregnant at the time. While at Smith's home, Danielle was using appellant's phone because hers had a dead battery. While using the phone, Danielle saw something o n appellant's phone that upset her and she confronted appellant. {¶ 3} The two began arguing. When the argument got loud Luan as ked them to stop, but they continued. Appellant then walked over to Daniell e, who was seated on a loveseat, and rammed his knee into Danielle's thigh. Luan noted that Appellant rammed Danielle so hard that Danielle's belly shifted. Danielle immedi ately began crying. {¶ 4} Luan told appellant she was calling police. While she was on the phone, appellant was on his knees begging Danielle to refrain from "se nding him to jail." He then got up and became loud and confrontational again. Luan told him to leave and he complied. {¶ 5} Reynoldsburg Police Officer Hanna Evans responded to Smit h's home at approximately 5:45 p.m. She found Danielle upset, her face flus hed, and her eyes red. Medics who were on standby came in to take a look at Danielle. She had no observable injury.Licking County, Case No. 2019 CA 00028 3 {¶ 6} While that was going on, Reynoldsburg Police Officer Nath an Grodhaus attempted unsuccessfully to locate appellant. He then joined Of ficer Evans who was speaking with Danielle. Danielle refused transport to the emerg ency room, and did not submit a written statement. {¶ 7} Appellant was subsequently charged with domestic violence , a felony of the fifth degree. He pled not guilty and opted to proceed to a jury trial which took place on April 4, 2019. The state presented evidence from Smith, Evans, and Grodhaus who provided the above outlined facts. Appellant presented evidence from Danielle who testified appellant simply "nudged" her leg. {¶ 8} After hearing all the evidence and deliberating, the jury found appellant guilty as charged. He was sentenced to a mandatory 6 months inc arceration. {¶ 9} Appellant filed an appeal and the matter is now before th is court for consideration. He raises three assignments of error as follow: I {¶ 10} "DUSTIN SZARELL'S CONVICTION IS BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH A ND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION." II {¶ 11} "DUSTIN SZARELL'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE O F THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTI TUTION."Licking County, Case No. 2019 CA 00028 4

III {¶ 12} "DUSTIN SZARELL RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT OT THE UNITED STAT ES CONSTITUTION AND SECTION 10, A RTICLE I OF THE OHIO CONSTITUTION ." I, II {¶ 13} We address appellant's first and second assignments of e rror together. In his first assignment of error, appellant argues his conviction is not supported by sufficient evidence. In his second assignment of error, he argues his conv iction is against the manifest weight of the evidence. We disagree. {¶ 14} On review for sufficiency, a reviewing court is to exami ne the evidence at trial to determine whether such evidence, if believed, would su pport a conviction. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inqu iry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the crime pr oven beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manif est weight, a reviewing court is to examine the entire record, weigh the evidence and a ll reasonable inferences, consider the credibility of wit nesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani fest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin , 20 OhioLicking County, Case No. 2019 CA 00028 5 App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily ag ainst the conviction." Martin at 175. {¶ 15} Appellant was charged with domestic violence pursuant to R.C. 2919.25(A) and (D)(1)(5) which provides:

(A) No person shall knowingly cause or attempt to cause physica l harm to a family or household member. * * * (D)(1) Whoever violates this section is guilty of domestic viol ence, and the court shall sentence the offender as provided in divisions (D)(2) to (6) of this section. * * * (5) Except as otherwise provided in division (D)(3) or (4) of t his section, if the offender knew that the victim of the violation was pregnant at the time of the violation, a violation of division (A) or (B) of this section i s a felony of the fifth degree, and the court shall impose a mandatory prison term on t he offender pursuant to division (D)(6) of this section * * * .

{¶ 16} Appellant argues that the evidence failed to show he cau sed or attempted to cause harm to Danielle, focusing on the lack of any visible injury. But the victim of a domestic violence need not suffer actual physical harm in order to support a conviction under R.C. 2919.25(A). Rather, an attempt to cause harm is suff icient. State v. Ford , 5thLicking County, Case No. 2019 CA 00028 6
Dist. Stark No. 2012CA142, 2013-Ohio-1883 ¶ 16. Smith described and demonstrated for the jury appellant's attempt to cause physical harm by ramming his knee into Danielle's thigh "it looked like as hard as he could." T. 81. This action by appellant is sufficient to support the element of causing or attempting to cause harm. We therefore reject appellant's sufficiency argument. {¶ 17} Appellant next argues his conviction is against the mani fest weight of the evidence because Smith was not believable vis-a-vis Danielle. I t is well settled, however, that the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison , 49 Ohio St.3d 182, 552 N.E.2d 180 (1990). The jury was free to accept or reject any or all of the evidence offered by the parties and assess the witness's credibility. Indeed, the jurors need not believe all of a witness's testimony, but may accept only portions of it as true. State v. Raver , Franklin App. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Upon review, we find nothing to indicate the jury in this matte r lost it way in making its credibility determinations and believing Smith over Danielle. {¶ 18} Appellant's first and second assignments of error are ov erruled. III {¶ 19} In his final assignment of error, appellant argues his c ounsel rendered ineffective assistance by failing to request the trial court wa ive court costs. We disagree. {¶ 20} To prevail on a claim of ineffective assistance of couns el, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that c ounsel's performance fell below an objective standard of reasonable representation, and ( 2) that counsel's errors prejudiced the defendant, i.e., a reasonable probability that b ut for counsel's errors, theLicking County, Case No. 2019 CA 00028 7

result of the trial would have been different. Strickland v. Washington , 466 U.S. 668, 687– 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus . “Reasonable probability” is “probability suffi cient to undermine confidence in the outcome.” Strickland at 694, 104 S.Ct. 2052. {¶ 21} We have previously addressed this issue in State v. Davis , 5th Dist. Licking No. 17-CA-55 2017-Ohio-9445, wherein we determined the followin g at ¶ 27:

We find no merit in Appellant's allegation that he received ine ffective assistance of counsel as a result of his attorney failing to re quest that the trial court waive court costs. Because R.C. 2947.23(C) gran ts appellant the ability to seek waiver of costs at any time, incl uding after sentencing, Appellant has not been prejudiced by the fail ure of his counsel to request a waiver at sentencing.

{¶ 22} In support of his argument that failure of counsel to re quest a waiver of court costs at sentencing constitutes ineffective assistance, appella nt cites State v. Springer , 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861. Springer conflicts with our decision in Davis , and that matter has been accepted for review by the Supreme C ourt of Ohio upon our certification of a conflict. We held in State v. Ramsey , 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, as we hold here; “[u]nless a decision is render ed on the issue to the contrary in the future, this Court will continue to abide by it s decision in Davis .” Id . SeeLicking County, Case No. 2019 CA 00028 8

also State v. Somers , 5th Dist. Muskingum No. CT2018-0013, 2018-Ohio-4625; State v. Bowen , 5th Dist. Muskingum No. CT2017-0103, 2018-Ohio-4220. {¶ 23} Appellant's final assignment of error is overruled. {¶ 24} The judgment of the Licking County Court of Common Pleas is affirmed.

By Wise, Earle, J. Gwin, P.J. and Baldwin, J. concur.

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