[Cite as State v. Bump, 2016-Ohio-4717.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CHAMPAIGN COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

JOHN C. BUMP 

Defendant-Appellant

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C.A. CASE NO. 2015-CA-10 

T.C. NO. 14CR262 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the ___30th___ day of _ _June___, 2016. 

. . . . . . . . . . . 

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main 

Street, Urbana, Ohio 43078 

 Attorney for Plaintiff-Appellee 

 

JULIA B. PEPPO, Atty. Reg. No. 0037172, 117 S. Main Street, Suite 400, Dayton, Ohio 

45422 

 Attorney for Defendant-Appellant 

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FROELICH, J. 

{¶ 1} John C. Bump was found guilty by a jury in the Champaign County Court of 

Common Pleas of one count of domestic violence in violation of R.C. 2919.25(A)/(D)(4) 

(two or more prior offenses), a felony of the third degree. The trial court sentenced him 
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to three years of community control. Bump appeals from his conviction. 

I. Procedural History 

{¶ 2} On October 27, 2014, Bump was charged with domestic violence, with two 

or more prior offenses, after police responded to his residence in Urbana and found a 

woman bleeding. On November 6, 2014, he was indicted on the same charge. Bump 

filed a notice of intent to assert an affirmative defense at trial, namely self-defense, and 

he stipulated prior to trial that he had two prior adjudications as a juvenile for domestic 

violence. On January 20, 2015, Bump was tried by a jury and was found guilty. On 

March 6, 2015, Bump was sentenced to three years of community control; the conditions 

of community control included completion of the West Central residential program, 

counseling and anger management counseling, 75 hours of community service, and 

paying a fine of $250, as well as court costs and court-appointed legal fees. 

{¶ 3} Bump filed a timely notice of appeal and filed a brief in which he raised four 

assignments of error. The State filed its appellee’s brief, and Bump filed a reply brief. 

More than one month after his reply brief was filed, with permission of this court, Bump 

filed an “Amended Assignment of Error,” which expanded on one of the previously 

enumerated assignments and added an additional one. The State filed a response to 

the expanded and new arguments.1

{¶ 4} We will address Bump’s assignments of error in an order that facilitates 

our discussion. 

 

1 In its responsive brief, rather than in a separate motion, the State asks that we strike the 

Amended Assignment of Error because it was not filed within the 20-day period provided 

in our January 21, 2016, Decision and Entry. (It was filed 26 days later.) We overrule 

this request. 
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II. Weight of the Evidence 

{¶ 5} In his fourth assignment of error, Bump contends that the jury’s verdict was 

against the manifest weight of the evidence. In support of his argument, he references 

questions submitted to the court by the jurors after the testimony of the complaining 

witness, A.B. He characterizes these questions as showing that the jury was 

“uncomfortable with the concept of [Bump] and [A.B.] being boyfriend and girlfriend and 

cohabiting under the definition of the R.C. 2919.29.” The definition of a “family or 

household member” to which Bump refers is actually set forth at R.C. 2919.25(F)(1). 

{¶ 6} The evidence presented at trial was as follows. 

{¶ 7} A.B., age 19, the alleged victim of the domestic violence, testified that she 

met Bump online in March 2014 through Chatango, a social networking site. At the time, 

A.B. was in Akron and homeless; she was interested in finding a “boyfriend” and a place 

to stay, and she posted statements to this effect on the website. After about one hour, 

Bump started a conversation with A.B. through the website, asked if she really needed a 

place to stay, and asked A.B. to come to Urbana to live with him; he stated, however, that 

she could only stay for a short time and would have to lie to his father about where she 

lived. A.B. could not recall why Bump wanted her to lie to his father. Bump and his 

father drove to Akron and picked A.B. up at the airport. 

{¶ 8} Although A.B. and Bump had not discussed the nature of their relationship 

prior to her arrival in Urbana, they discussed it the night of her arrival. Bump asked A.B. 

if she wanted to be his girlfriend, and she agreed. They began a sexual relationship and 

stayed in Bump’s apartment for a week, at which point Bump told A.B. she had to leave. 

She went to Columbus and then to Zanesville to stay with friends before returning to 
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Akron to live with her parents. She kept in touch with Bump through occasional texting. 

{¶ 9} In October 2014, Bump asked A.B. to come back to Urbana. A.B. thought 

this visit would be for a more extended time. On October 10, she arrived by Greyhound 

bus in Springfield, where she was picked up by Bump and his father. A.B. testified that 

she and Bump got along fine for a couple of weeks, resumed their sexual relationship, 

and again spent most of their time in Bump’s apartment. 

{¶ 10} According to A.B., on October 24 or 25, Bump left the apartment to stay 

with a friend in Springfield, apparently without explanation. He did not ask A.B. to leave 

and, in fact, told her she could stay. On October 26, A.B. did not feel well, and Bump 

was not responding to her texts. She had a male friend in Springfield, and she asked 

him for help, specifically to bring her some food and ginger ale at Bump’s apartment. 

The friend did so and, according to A.B., her friend only stayed at the apartment for five 

minutes. A.B. also asked the friend to text Bump, because Bump was not responding to 

her texts. (The friend and Bump did not know one another.) It is unclear from the record 

when these texts were sent or what was said, but the texts made Bump aware of A.B.’s 

friend’s visit to the apartment. 

{¶ 11} On October 27, 2014, Bump returned to the apartment in the early 

afternoon; he was “very angry” with A.B., and he told A.B. that she needed to leave. 

According to A.B., Bump was loud and yelling and, as she tried to get dressed, he told 

her that she had five seconds to leave. Bump apparently believed that A.B. and her male 

friend from Springfield were “more than friends.” Bump hit A.B. in the face with an open 

hand “really hard”; A.B. stated that she did not hit him back. She went to the floor, crying. 

Bump then called 911, claiming that A.B. would not leave and that she was trying to start 
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a fight. He also began to throw her belongings out the front door of the apartment onto 

the driveway. 

{¶ 12} The 911 recording was played at trial, and A.B. identified the crying voice 

in the background as her own. When asked why Bump was saying to get off of him, A.B. 

explained that she had tried to put her hand on Bump’s shoulder to calm him down and 

to hug him; she stated that she was not trying to cause him harm. 

{¶ 13} According to A.B., after the 911 call ended, Bump “grab[bed]” her by the 

wrist, “tosse[d]” her on the floor, and started “jerking” her by her hair and dragging her 

toward the door. Bump asked why A.B. did not go with the friend she had called, and he 

punched her in the face with a closed fist, striking the bridge of her nose. She fell to the 

ground and struck her face on the ground; when she put her hand to her face, she “saw 

nothing but blood.” She testified that she sustained a large cut across her nose, a 

concussion, bruised lip and ribs, and a chipped tooth. 

{¶ 14} At the beginning of her testimony, when asked if she had any medical 

conditions that made it difficult for her to understand counsel’s questions, A.B. stated that 

she has Asperger’s syndrome, which she described as “a high functioning of autism” that 

“makes [it] hard to understand certain questions.” 

{¶ 15} On cross-examination, A.B. remembered another trip to Urbana in May, 

2014, for one week, and she testified that her October 2014 trip was actually the third 

time she had visited Bump. She testified that, on the first two trips and the majority of 

the third trip, she and Bump had gotten along fine, that they had considered themselves 

boyfriend and girlfriend, and that they had said they loved each other. 

{¶ 16} The 911 dispatcher who handled the call from Bump on October 27, 2014, 
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testified that Bump was “complaining about an unwanted guest” and used an “angry” tone. 

She further testified that he was not “very forthcoming with information” in response to 

her questions, then he hung up. 

{¶ 17} Urbana Police Officers Shawn Schmidt and Steve Molton also testified at 

trial. Molton was the first officer on the scene; he found Bump “agitated” and “excited” 

and saw A.B. lying on the floor of the apartment, crying “[a]lmost to hysterical.” Molton 

handcuffed Bump and placed him in the cruiser, then went to assist A.B. while waiting for 

backup and medical assistance to arrive. Molton testified that Bump did not have any 

blood on him, and that Bump asserted that he had acted in self-defense. Molton also 

testified that A.B. referred to Bump as her “boyfriend” during this encounter; he could not 

recall whether Bump had referred to A.B. as his girlfriend. Molton stated that A.B. had 

not reported at that time that Bump had dragged her by her hair, because that information 

was not in his report. 

{¶ 18} Schmidt was the second officer on the scene. When he arrived, he 

observed belongings strewn across the driveway and saw Officer Molton caring for A.B. 

inside the apartment. According to Schmidt, A.B. was very upset, crying, and bleeding; 

she had blood all over her face, there were drips of blood on the floor in the hallway, and 

there was “a puddle or a pool of blood with drips around it” in the back room. Schmidt 

described the amount of blood as “considerable” and indicative of “substantial injury.” 

A.B. stated to Schmidt that Bump was upset because she had called a friend over to the 

apartment the previous night and he thought she was cheating; she also stated that Bump 

had slapped and punched her. 

{¶ 19} Schmidt also talked with Bump, who he described as “agitated” and “very 
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excited.” Bump stated that A.B. “had trespassed his trust by inviting somebody over” 

and that he had asked her to leave several times when he returned to the apartment, but 

she did not. Bump also stated that he thought the police were “stalling” and “harassing 

him” when he called 911, because they tried to “keep him on the phone when he was just 

trying to get somebody to leave his property.” Bump stated that, after he had asked A.B. 

to leave and thrown some of her “stuff” outside, she “tried to face-plant him into the stove,” 

and he defended himself by pushing her off of him. 

{¶ 20} Bump did not call any witnesses at trial or testify on his own behalf. 

Although Bump had filed a notice of intent to assert an affirmative defense of self-defense, 

Officer Schmidt’s brief statement about A.B.’s attempt to “face-plant” Bump and Bump’s 

assertion to Officer Molton at the scene that he had acted in self-defense were the only 

evidence offered on this point. 

{¶ 21} When reviewing an argument challenging the weight of the evidence, 

“ ‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable 

inferences, considers the credibility of witnesses and 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. The 

discretionary power to grant a new trial should be exercised only in the exceptional case 

in which evidence weighs heavily against the conviction.’ ” State v. Thompkins, 78 Ohio 

St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 

485 N.E.2d 717 (1st Dist.). 

{¶ 22} R.C. 2919.25 provides, in pertinent part: 

(A) No person shall knowingly cause or attempt to cause physical harm to 
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a family or household member. 

* * * 

(F)(1) “Family or household member” means any of the following: 

a) Any of the following who is residing or has resided with the offender: 

(i) A spouse, a person living as a spouse, or a former spouse of the offender; 

* * * 

(2) “Person living as a spouse” means a person who is living or has lived 

with the offender in a common law marital relationship, who otherwise is 

cohabiting with the offender, or who otherwise has cohabited with the 

offender within five years prior to the date of the alleged commission of the 

act in question. 

{¶ 23} Bump’s argument that his conviction was against the manifest weight of 

the evidence is focused on whether the jury reasonably concluded that A.B. was his 

“family or household member.” In particular, he focuses on questions submitted to the 

court by the jurors, at the court’s invitation, at the end of A.B.’s testimony. These 

questions focused on: 1) how she had forgotten that she came to Urbana three times 

instead of two; 2) A.B’s reason for moving out of other places, such as Zanesville; 3) 

whether she had ever discussed her “Asperger condition” with Bump; 4) the identity of 

the “friend who lives in Urbana [sic],” how she knew him, and the nature of their 

relationship; 5) what she thought would happen to her apartment in Akron (in October) if 

she stayed in Urbana for an extended time; 6) what was her “state of mind” when she 

asked her friend to bring soda; 7) whether she and Bump had any physical altercations 

during her May visit; and 8) how she knew she had Asperger’s, and what were its 
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characteristics “as related to the case.” The trial court asked A.B. questions (1) – (6), but 

did not ask questions (7) – (8). 

{¶ 24} Bump asserts in his brief that these questions suggest the jury was “clearly 

* * * uncomfortable with the concept of [Bump] and [A.B.] being boyfriend and girlfriend 

and cohabiting” for purposes of the definition of a family or household member. 

However, most of the questions cannot reasonably be interpreted to relate to the status 

of their relationship. Moreover, even the ones that do touch upon the nature of the 

relationship – for example, what was happening with her Akron apartment and the nature 

of the relationship with the friend in Springfield -- did not represent “a common mindset of 

a group of people,” as Bump suggests. These were the questions of individual jurors, 

and not the result of collective discussion. See Crim.R. 24(J)(3) (prohibiting jurors from 

discussing a proposed question with other jurors). While these questions may reflect 

some jurors’ curiosity about various aspects of the case, they cannot reasonably be 

construed as demonstrating reasonable doubt about the nature of A.B. and Bump’s 

relationship, especially in light of the jurors’ subsequent finding of guilt, which required 

them to unanimously agree that A.B. and Bump had been cohabiting as family or 

household members. 

{¶ 25} Based on the evidence presented, we cannot conclude that the jury “clearly 

lost its way” or created a “manifest miscarriage of justice” in convicting Bump of domestic 

violence. 

{¶ 26} The fourth assignment of error is overruled. 

III. Leading Questions 

{¶ 27} In his first assignment of error, Bump asserts that the prosecutor’s direct 
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examination of A.B “consisted almost exclusively of leading questions,” in violation of 

Evid.R. 611(C), and that this conduct amounted to prosecutorial misconduct and plain 

error. Bump did not object to the leading nature of any of the questions, but the court 

did, at one point at sidebar, instruct the prosecutor to avoid the use of such questions. 

{¶ 28} Evid.R. 611(C) provides that “[l]eading questions should not be used on 

the direct examination of a witness except as may be necessary to develop the witness’ 

testimony.” The broad exception contained in Evid.R. 611(C) -- when leading questions 

“may be necessary to develop the witness’ testimony” -- places the decision of whether 

to allow leading questions within the sound discretion of the trial court. State v. Jackson,

92 Ohio St.3d 436, 449, 751 N.E.2d 946 (2001). State v. Davis, 2d Dist. Clark No. 

08CA0117, 2010-Ohio-5279, ¶ 26. 

{¶ 29} In order to constitute plain error, the error must be an obvious defect in the 

trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d 

Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22; Crim.R. 52(B). Plain error should be 

noticed “with the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), 

paragraph three of the syllabus. 

{¶ 30} Bump’s assertion that the prosecutor used leading questions “almost 

exclusively” is not borne out by the record. However, there were a few points at which 

the prosecutor lapsed into a series of leading questions. For the most part, these 

questions did not supply testimony and did not “[form] a substantial part of the witness’ 

performance,” as was the concern in some of the cases on which Bump relies. See, 

e.g., State v. Poling, 11th Dist. Portage No. 2004-P-0044, 2006-Ohio-1008, ¶ 27. 
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Understandably, leading questions are less problematic when they are interspersed with 

other questions which require a witness to provide additional information, as was the case 

here. See State v. DeBlasis, 8th Dist. Cuyahoga No. 81126, 2004-Ohio-2843, ¶ 45. 

{¶ 31} The series of leading questions on which Bump primarily focuses his 

argument – and which the court interrupted sua sponte – occurred during redirect 

examination, when counsel sought to review points about which A.B. had already 

testified. This review of prior testimony through leading questions, while inappropriate in 

form, was not prejudicial to Bump and thus did not constitute plain error. The prosecutor’s 

occasional use of leading questions in other portions of A.B.’s testimony, which was 

interspersed with questions where she was required to provide substantive information, 

also did not amount to plain error. 

{¶ 32} Bump also objects to the prosecutor’s “looping back around and 

rehabilitating by his leading questions of [A.B.] in order to get her to tell the story he 

needed her to tell to meet the elements of the crime,” namely, to state that A.B. and Bump 

“had a relationship.” This argument focuses specifically on A.B.’s testimony about when 

the relationship began. She testified, in various ways, that they were “dating” in March 

and that their boyfriend-girlfriend relationship began the first night of her March visit. Her 

testimony was consistent that they had not discussed a relationship before she arrived 

for the first time, but they did so shortly after her arrival. We are unpersuaded that the 

prosecutor improperly “looped” back to this issue, thereby creating a “travesty” or 

“chang[ing] the testimony of [A.B.] by attacking it with another leading question.” 

Moreover, insofar as these questions related to the status of the relationship at its outset, 

more than six months before the alleged offense and the relevant determination of the 
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status of the relationship, their relevance to the ultimate issues in the case is doubtful. 

{¶ 33} We note that the State argues in its brief that “more leading or pointed 

questions may have been necessary” in this case, based on A.B.’s testimony that her 

Asperger’s syndrome made it difficult for her to “understand certain questions.” 

However, neither party elicited additional information about A.B.’s diagnosis, and it is not 

apparent from the record that A.B. had any trouble understanding questions from either 

party. While the trial court might permit some leading questions “as * * * necessary to 

develop the witness’s testimony” based on a witness’s medical diagnosis in certain 

circumstances, there is no indication in the record that the trial court considered this factor 

here. And, insofar as Bump did not object to any of the leading questions, the State was 

not called upon to justify their use, and the court was not required to rule on whether 

Asperger’s warranted the use of leading questions. The first assignment of error is 

overruled. 

IV. Prosecutorial Misconduct 

{¶ 34} In his second assignment of error, Bump argues that prosecutorial 

misconduct deprived him of his right to a fair trial. He further asserts that his “case should 

be dismissed with prejudice,” and that he cannot be retried because he may not be twice 

placed in jeopardy for the same offense. 

{¶ 35} The test for prosecutorial misconduct is whether the prosecutor’s remarks 

or questions were improper and, if so, whether they prejudicially affected substantial 

rights of the accused. State v. Exon, 2d Dist. Clark No. 2014-CA-106, 2016-Ohio-600, ¶ 

40, citing State v. Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300 (2000). A prosecutor’s 

conduct during trial cannot be grounds for error unless the conduct deprives the 
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defendant of a fair trial. State v. Williams, 2d Dist. Montgomery No. 24548, 2012-Ohio4179, ¶ 51, citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). The 

focus of the inquiry is on the fairness of the trial, not on the culpability of the prosecutor. 

State v. Bey, 85 Ohio St.3d 487, 496, 709 N.E.2d 484 (1999). 

{¶ 36} A defendant’s substantial rights cannot be prejudiced when the remaining 

evidence, standing alone, is so overwhelming that it establishes defendant’s guilt, such 

that the outcome of the case would have been the same regardless of evidence admitted 

erroneously. Exon at ¶ 40; State v. Williams, 38 Ohio St.3d 346, 528 N.E.2d 910 (1988). 

“[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the 

reality of the human fallibility of the participants, there can be no such thing as an errorfree, perfect trial, and * * * the Constitution does not guarantee such a trial.” United 

States v. Hasting, 461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). 

{¶ 37} The specific bases for Bump’s argument that prosecutorial misconduct 

deprived him of a fair trial are 1) the leading questions discussed above, and 2) the 

prosecutor’s comments during closing argument about Bump’s motivation for inviting A.B. 

to his house. We have already addressed the prosecutor’s use of leading questions and 

concluded that the questions, though some were improperly phrased, did not affect 

Bump’s right to a fair trial or amount to plain error. We similarly conclude that the leading 

questions did not affect the fairness of the trial or Bump’s substantial rights. 

{¶ 38} The portion of the prosecutor’s closing argument to which Bump objects 

occurred during rebuttal, after the prosecutor reminded the jury of the length of A.B.’s 

October visit, the fact that she was invited by Bump, that Bump had not imposed a time 

limit for this visit at the outset as he had with the previous visits, and that A.B. considered 
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Bump to be her boyfriend in an ongoing relationship. The prosecutor noted that, in 

October 2014, Bump kicked A.B. out after 17 days, and A.B. did not understand why. 

The prosecutor then stated: 

Is this – is this defendant the good samaritan of the year? Ask 

yourself, what would a 21-year-old guy sitting in his apartment in Urbana, 

Ohio, want with a 19-year-old female who is homeless at the outset in 

Akron, Ohio? Does he really want you to believe that he was doing this out 

of the goodness of his heart? Why would a guy 200 miles away log into 

Chatango and find some random person only to invite them to come down 

and stay at his house out of the goodness of his heart? Or did he have 

other intentions? 

 The state would submit to you that the evidence submitted 

demonstrates that he did have other intentions. He was interested in 

[A.B.], and he communicated that interest. 

{¶ 39} Bump argues that this statement was “inflammatory” and that it was a 

“personal assault of the Appellant’s character.” 

{¶ 40} As a general rule, a prosecutor is entitled to a certain degree of latitude 

during closing argument. State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523 (1988); 

State v. Arnold, 2013-Ohio-5336, 2 N.E.3d 1009, ¶ 137 (2d Dist.). Moreover, closing 

arguments must be viewed in their entirety to determine whether the disputed remarks 

were prejudicial. Arnold at ¶ 137. 

{¶ 41} Bump does not articulate in what manner he believes that the quoted 

portion of the argument assaulted his character. Read in context, it is apparent that the 
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prosecutor was recounting the evidence offered in support of a finding that Bump and 

A.B. were in a relationship. The undisputed evidence (which had already been 

discussed by the prosecutor in closing and in rebuttal) was that A.B. had visited Bump 

several times, that they spent almost all of their time together during these visits, that they 

expressed love for one another, and that they engaged in a sexual relationship throughout 

each of these visits. A.B. had been staying at Bump’s apartment for more than two 

weeks when the alleged domestic violence occurred. Based on this evidence, the 

prosecutor argued to the jury that there was no other reasonable explanation but that 

Bump and A.B. were in a relationship (i.e., that they were “family or household members,” 

as required for a domestic violence conviction). Viewed in context, we cannot conclude 

that these statements were “inflammatory,” that they exceeded the latitude afforded a 

prosecutor during closing argument, or that they unfairly impugned Bump’s character. 

{¶ 42} The second assignment of error is overruled. 

V. Reliance on Juvenile Adjudications to Enhance the Degree of the Offense 

{¶ 43} In his fifth assignment of error, Bump contends that the use of his juvenile 

adjudications for domestic violence to establish the existence of prior offenses violated 

his constitutional rights, because he pled to the juvenile charges “without the benefit of 

the constitutional protections afforded to adults charged in identical charges.” 

{¶ 44} Pursuant to R.C. 2919.25(D), domestic violence is a misdemeanor of the 

first degree unless the offender has prior convictions. If the defendant has one prior 

offense, domestic violence is a felony of the fourth degree; with two or more prior 

offenses, it is a felony of the third degree. 

{¶ 45} This court addressed this issue in State v. Hand, 2d Dist. Montgomery No. 
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25840, 2014-Ohio-3838. Relying on State v. Craver, 2d Dist. Montgomery No. 25804, 

2014-Ohio-3635, we rejected the argument that, because an accused is not afforded a 

jury trial in juvenile court and is not advised of the collateral consequences of accepting 

responsibility, treating a delinquency adjudication as a prior conviction for purposes of an 

enhanced penalty violates due process. Craver at ¶ 7-16. We also held that a prior 

delinquency adjudication falls within the prior-conviction exception set forth in Apprendi 

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as long as the 

juvenile adjudication is “sufficiently reliable.” Id.; see also R.C. 2901.08; State v. Parker, 

8th Dist. Cuyahoga No. 97841, 2012-Ohio-4741. 

{¶ 46} As Bump points out, the Supreme Court of Ohio accepted an appeal of our 

judgment in Hand in March 2015, to consider the use of juvenile adjudications to enhance 

penalties for subsequent offenses. Ohio Sup.Ct. No. 2014-1814, 2015-Ohio-1099. 

The case was argued on December 1, 2015. Nonetheless, based on our holdings in 

Hand and Craver, we do not accept Bump’s argument that such reliance on juvenile court 

adjudications is improper. 

{¶ 47} The fifth assignment of error is overruled. 

VI. Ineffective Assistance of Counsel 

{¶ 48} In his third assignment of error, Bump argues that he was denied the 

effective assistance of counsel in the following ways: 1) counsel’s failure to object to the 

prosecutor’s leading questions; 2) counsel’s failure to object to the prosecutor’s 

“misrepresentation” of A.B.’s testimony and to request a mistrial on that basis; 3) 

counsel’s failure to object to the prosecutor’s disparagement of Bump’s character during 

closing argument; 4) counsel’s failure to request a lesser included offense instruction on 
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assault; 5) counsel’s failure to offer evidence of self-defense; 6) counsel’s failure to move 

to dismiss the case at the close of the State’s case; and 7) counsel’s failure to request a 

judgment notwithstanding the verdict. In his amended brief, Bump also argues that 

counsel was ineffective in stipulating to Bump’s juvenile adjudications for domestic 

violence and in failing to challenge the use of these convictions to enhance his sentence. 

{¶ 49} To establish the ineffective assistance of counsel, a defendant must 

demonstrate that counsel’s performance was deficient and fell below an objective 

standard of reasonable representation, and that the defendant was prejudiced by 

counsel’s performance. To succeed on such a claim, there must be a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the defendant’s trial 

would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 

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

{¶ 50} We have already addressed the prosecutor’s leading questions and the 

alleged disparagement of Bump’s character during closing argument. We rely on our 

discussion, above, in concluding that counsel’s failure to object in these instances did not 

fall below an objective standard of reasonableness and did not affect the outcome of 

Bump’s trial. We also disagree with Bump’s assertion that his attorney’s failure to object 

to the prosecutor’s efforts to clarify and reinforce A.B.’s testimony about the nature of her 

relationship with Bump at various times (the alleged “looping” discussed above) 

constituted ineffective assistance or that it warranted a request for a mistrial. Moreover, 

insofar as we held in Hand that a juvenile adjudication could be used to enhance the 

penalty for a subsequent offense, counsel was not ineffective in failing to raise that issue, 

as alleged in the amended brief. 
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{¶ 51} With respect to counsel’s failure to request a lesser included offense 

instruction on assault, we note that the following events occurred at trial: When the court 

instructed the jury prior to the start of its deliberations, it did not give an instruction on the 

lesser included offense of assault, and the parties did not bring this omission to the court’s 

attention. It is unclear from the record whether either party had requested such an 

instruction. After deliberation had begun, the court called the attorneys back into the 

courtroom outside the presence of the jury, and informed counsel that the court believed 

a lesser included instruction should have been given to the jury (along with a 

corresponding additional verdict form) and that its failure to do so was “not harmless.” 

The jury was called back into the courtroom, and new jury instructions were provided 

orally and in writing, which were reviewed with the jurors. The court also told the jurors 

that they should “not make any inference as to why the court is including [the lesser 

included offense instruction] now,” emphasizing that it should have been given at the 

outset. 

{¶ 52} Even if defense counsel arguably acted ineffectively in failing to request 

the lesser included offense instruction on assault (which corresponded with the defense 

theory of the case that A.B. was not a family or household member of Bump’s), any 

prejudice that may have flowed from this omission was corrected by the trial court’s giving 

of the instruction. Moreover, A.B.’s relationship with Bump was an untraditional one but, 

as stated above, we cannot find that the jury lost its way in concluding that Bump and 

A.B. were family or household members. Thus, we conclude that counsel's failure to 

request an instruction on the lesser-included offense did not affect the outcome of the 

case. 
-19-

{¶ 53} Bump also argues that counsel was ineffective in failing to offer evidence 

of self-defense, after mentioning it in her opening statement, and in failing to ask that the 

jury instruction on self-defense be withdrawn. 

{¶ 54} Counsel’s opening statement with respect to self-defense included the 

following: “While [A.B.] was asking my client to let her stay, she got physical with him. 

He pushed her off of him, and she fell and was injured. My client isn’t going to try to hide 

the fact that [A.B.] was injured * * *.” Defense counsel did not use the word “self-defense” 

during opening statement. The evidence of self-defense offered at trial consisted of: 1) 

Officer Schmidt’s testimony that Bump had stated that he defended himself by pushing 

A.B. after she tried to “face-plant him into the stove”; 2) Officer Molton’s testimony that 

Bump claimed to have acted in self-defense; and 3) the 911 dispatcher’s testimony about 

and the audio recording of the 911 call, on which Bump was heard to say (to A.B.) “get 

off of me.” Although Bump argues in his brief that counsel was ineffective in not offering 

more evidence of self-defense, he does not suggest what, if any, additional evidence was 

available to substantiate his claim. We cannot conclude that counsel was ineffective in 

failing to present evidence without some reliable indication that such evidence was 

available. Moreover, because the opening statement referenced self-defense and 

because some evidence was offered in support of Bump’s claim of self-defense, there is 

no basis for us to conclude that trial counsel was ineffective in allowing the instruction on 

self-defense to be given, nor is there any basis to conclude that Bump was prejudiced by 

the giving of the instruction. 

{¶ 55} Finally, Bump argues that trial counsel was ineffective in failing to move to 

dismiss the case at the close of the State’s evidence and in failing to request a judgment 
-20-

notwithstanding the verdict at the end of trial pursuant to Crim.R. 29. A Crim.R. 29 

motion is evaluated by an appellate court using the same standard as is used to review 

a sufficiency of the evidence claim. State v. White, 2d Dist. Montgomery No. 25792, 

2014-Ohio-1446, ¶ 9, citing State v. Witcher, 6th Dist. Lucas No. L-06-1039, 2007-Ohio3960. “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is whether, 

after reviewing 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.’ ” (Citations omitted). Id., citing State v. Crowley, 2d Dist. Clark No. 2007 CA 99, 

2008-Ohio-4636, ¶ 12. To the extent a “motion for judgment notwithstanding the verdict” 

exists in the criminal context, it relates to the sufficiency of the evidence. See, e.g., State 

v. Barnes, 1st Dist. Hamilton Nos. C-950784 and 950785, 1996 WL 603797, * 3 (Oct. 23, 

1996). 

{¶ 56} The evidence presented in this case, viewed most favorably to the State, 

was sufficient to support Bump’s conviction of domestic violence. Because motions to 

dismiss or for “judgment notwithstanding the verdict” under Crim.R. 29 would properly 

have been overruled, counsel was not ineffective in failing to request that the case be 

dismissed at the end of the State’s case or in failing to request a judgment notwithstanding 

the verdict. 

{¶ 57} The third assignment of error is overruled. 

VII. Conclusion 

{¶ 58} The judgment of the trial court will be affirmed. 

. . . . . . . . . . . . . 

FAIN, J., concurs. 
-21-

DONOVAN, P.J., concurring: 

{¶ 59} My concern is the fifth assignment of error. As noted by the majority, the 

issue of penalty enhancement with a juvenile adjudication and the due process 

implications thereof is pending in the Ohio Supreme Court in the Hand case. Further, 

Hand’s reliance upon Craver, an Anders case, is inherently unpersuasive. I remain 

convinced Hand was wrongly decided. Nevertheless, it remains the law in the Second 

District until such time as the Ohio Supreme Court should find otherwise. 

. . . . . . . . . . 

Copies mailed to: 

Jane A. Napier 

Julia B. Peppo 

Hon. Nick A. Selvaggio