[Cite as State v. Heald, 2022-Ohio-2282.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- v -

MARCUS E. HEALD,

Defendant-Appellant.

CASE NOS. 2021-L-111

 2021-L-112

Criminal Appeal from the

Painesville Municipal Court

Trial Court Nos. 2021 CRB 01024 A

 2021 CRB 01024 B

O P I N I O N

Decided: June 30, 2022

Judgment: Affirmed

Joseph Hada, Madison Township Prosecutor, 1392 SOM Center Road, Mayfield

Heights, OH 44124 (For Plaintiff-Appellee).

Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44060 (For 

Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Marcus E. Heald, appeals his conviction for Assault 

following a bench trial in the Painesville Municipal Court. For the following reasons, 

Heald’s conviction is affirmed.

{¶2} On June 15, 2021, a Complaint was filed in the Painesville Municipal Court 

charging Heald with Assault, a misdemeanor of the first degree in violation of R.C. 

2903.13(A), and Disorderly Conduct, a minor misdemeanor in violation of R.C. 

2917.11(A)(1).

{¶3} On September 27, 2021, a bench trial was held. The following witnesses 
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gave testimony on behalf of the State:

{¶4} Jason Hughes, a police officer with the Painesville Police Department, 

testified that, on May 16, 2021, at approximately 11:48 p.m., he was dispatched to the 

area of Homeworth Avenue and North State Street in response to a report of a fight or 

altercation in progress. At the scene, Hughes spoke with a Sheri Thompson who claimed 

that she had been struck in the side of her face. Hughes noted that there “appeared to 

be some slight bruising on her cheek.” 

{¶5} Thompson testified that she lived on Shelby Avenue in close proximity to 

Heald and his girlfriend, Crystal Scheibelhoffer, on Homeworth Avenue. On the date in 

question, Thompson confronted Scheibelhoffer outside of her residence regarding, inter 

alia, her use of racial slurs. Scheibelhoffer went inside the apartment, but the door 

remained open. According to Thompson: “I am standing on the porch. Out of nowhere, 

[Heald] comes running up on the porch, gets in my face and says, ‘You in my area now, 

b***ch,’ and punched me in my face.”

{¶6} Nickole Doss testified that, on the date in question, she was inside her 

residence on Homeworth Avenue when she heard a loud ruckus outside. From her 

window, she observed a group of people yelling and arguing. She noted a Caucasian 

lady1 back inside an apartment while an African-American lady followed her onto the 

porch telling her to come outside. At this point, a Caucasian male “ran up behind the 

black lady that was standing at the door and reached to grab her.” Doss then heard an 

African-American male tell the Caucasian male “not to put his hands on his girl.” Doss 

could not confirm whether the Caucasian male made contact with the African-American 

1. Doss either did not, or could not, identify any of the persons she witnessed during the incident.
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female. She “just saw his hands go towards her * * * just saw him going towards her with 

his hands outreached.” Doss recorded some of the incident with her phone which 

recording was played for the court.

{¶7} At the close of the State’s case, Heald moved for acquittal pursuant to 

Criminal Rule 29(A). The municipal court denied the motion “based upon the testimony 

of Ms. Thompson, who said that she was struck on the left cheek.”

{¶8} Based on the foregoing testimony, the municipal court found Heald guilty of 

Assault and Disorderly Conduct and merged the Disorderly Conduct charge for purposes 

of sentencing. The court sentenced Heald to serve 180 days in the Lake County Jail, 

placed him on community control for 12 months, and ordered him to pay a fine of $150. 

The court suspended 150 days of the jail sentence on condition that Heald abides by the 

terms of his Community Control. Heald’s sentence was stayed pending appeal.

{¶9} On October 21, 2021, Heald filed a Notice of Appeal. On appeal, he raises 

the following assignments of error:

[1.] The Court’s finding of guilt and Heald’s subsequent conviction for 

assault is contrary to the manifest weight of the evidence; therefore, 

Heald’s conviction for said count should be overturned, and Heald 

should be remanded to the trial court for a new trial.

[2.] The Court’s admission of hearsay as to prove an element of the 

offenses at hand should be overturned, and Heald should be 

remanded to the trial court for a new trial.

[3.] Heald’s trial counsel was ineffective in failing to call any 

witnesses in Heald’s defense.

[4.] The Court’s denial of Defendant’s Rule 29 Motion should be 

overturned, and Heald should be remanded to the trial court for a 

new trial.
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{¶10} The assignments of error will be addressed out of order.

{¶11} In the second assignment of error, Heald argues that the municipal court 

erred by permitting Officer Hughes to offer hearsay testimony, after proper objection, on 

essential elements of the charges against him.

{¶12} “[A] trial court is vested with broad discretion in determining the admissibility 

of evidence in any particular case, so long as such discretion is exercised in line with the 

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 

1056 (1991). A trial court “does not have the discretion to admit evidence that is clearly 

not permitted by law * * * such as whether testimony constitutes hearsay.” State v. Davis, 

11th Dist. Lake No. 2019-L-170, 2021-Ohio-237, ¶ 133. In such cases, the lower court’s 

evidentiary ruling is reviewed de novo. Id.

{¶13} In a bench trial where the court is the trier of fact, it is presumed “that the 

judge disregards improper hearsay evidence unless there is affirmative evidence in the 

record to the contrary.” (Citation omitted.) State v. Wuensch, 2017-Ohio-9272, 102 

N.E.3d 1089, ¶ 36 (8th Dist.); State v. Schultz, 11th Dist. Lake No. 2003-L-156, 2005-

Ohio-345, ¶ 37, citing Columbus v. Guthmann, 175 Ohio St. 282, 194 N.E.2d 143 (1963), 

paragraph three of the syllabus (“[i]n the absence of some showing to the contrary, there 

is a presumption that a trial judge performed his duty and did not rely upon anything in 

reaching his decision that he should not have relied upon”). 

{¶14} Here, Officer Hughes described videos of the incident shown to him at the 

scene in which Heald “was using all sorts of obscene language” and “racial slurs.” 

Hughes also testified that “Ms. Thompson stated that she was on the porch of [the 

apartment on] Homeworth and that’s where she was having -- and based on the statement 
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given by Ms. Doss -- she was having a verbal argument or an exchange with Crystal 

Scheibelhoffer.” At this point, counsel for Heald objected to the testimony noting that the 

witness was available to testify. The municipal court overruled the objection: “It’s a trial 

to the Court, so the Court understands the rules of evidence there.”

{¶15} We find no error. There is no evidence in the record to rebut the 

presumption that the municipal court “considered only the relevant, material, and 

competent evidence in arriving at its judgment.” State v. White, 15 Ohio St.2d 146, 151, 

239 N.E.2d 65 (1968). On the contrary, the court acknowledged that it understood the 

rules of evidence and, when ruling on Heald’s motion for acquittal, only cited to the 

testimony of Thompson given in court. Additional considerations also weigh against a 

finding of error. The statements attributed to Heald were admissible inasmuch as a 

defendant’s own out-of-court statements are not generally considered hearsay when 

offered against him at trial. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 

N.E.2d 229, ¶ 112, citing Evid.R. 801(D)(2)(a). The statements by Thompson and Doss 

were not material to the charges, but only provided context or background to, in the court’s 

words, “the alleged altercation that led to the charge of the assault.” Arguably, the 

statements would not be hearsay at all if taken as explaining Officer Hughes’ investigative 

activity. State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 20. 

Even if taken as hearsay, however, their admission was harmless since Thompson and 

Doss both testified at trial on the same matters alluded to in Hughes’ testimony. State v. 

Arcuri, 11th Dist. Trumbull No. 2015-T-0123, 2016-Ohio-8254, ¶ 60.

{¶16} The second assignment of error is without merit.

{¶17} In the first and fourth assignments of error, Heald challenges the weight and 
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sufficiency of the evidence supporting his conviction for Assault.

{¶18} Criminal Rule 29(A) provides that “[t]he court * * * shall order the entry of a 

judgment of acquittal of one or more offenses charged * * * if the evidence is insufficient 

to sustain a conviction of such offense or offenses.” In reviewing the sufficiency of the 

evidence, “[t]he 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.

{¶19} Whereas “sufficiency of the evidence is a test of adequacy as to whether 

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the 

evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio 

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio 

St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence 

is more persuasive—the state’s or the defendant’s?” Id. An appellate court must 

consider all the evidence in the record, the reasonable inferences, the credibility of the 

witnesses, and 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.” (Citation omitted.) Thompkins at 387. “Since there must 

be sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction 

is supported by the weight of the evidence necessarily must include a finding of 

sufficiency.’” (Citation omitted.) State v. Hall, 11th Dist. Lake Nos. 2019-L-027 and 2019-

L-031, 2019-Ohio-4000, ¶ 42.

{¶20} In order to convict Heald of Assault, the State was required to prove beyond 
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a reasonable doubt that he “knowingly cause[d] or attempt[ed] to cause physical harm to 

another.” R.C. 2903.13(A). Ohio law recognizes a person’s right to act in “defense of 

another.” “If, at the trial of a person who is accused of an offense that involved the 

person’s use of force against another, there is evidence presented that tends to support 

that the accused person used the force in * * * defense of another * * *, the prosecution 

must prove beyond a reasonable doubt that the accused person did not use the force in 

* * * defense of another.” R.C. 2901.05(B)(1). As construed by this court, the statute 

requires evidence that “tends to support,” i.e., it must “serve, contribute, or conduce in 

some degree or way” to support the use of force in a particular situation. State v. Petway, 

2020-Ohio-3848, 156 N.E.3d 467, ¶ 74 (11th Dist.); compare State v. Jacinto, 2020-Ohio3722, 155 N.E.3d 1056, ¶ 49 (8th Dist.) (“evidence ‘tends to support’ that a defendant 

used force in self-defense * * * where the evidence in the record is sufficient to raise a 

question of reasonable doubt of guilt, based on a claim of self-defense, in the mind of a 

reasonable juror”).

{¶21} In cases involving the use of non-deadly force, the elements of a valid selfdefense claim are “the defendant was not at fault in creating the situation, and the 

defendant had a genuine belief that he was in imminent danger of bodily harm.” Petway

at ¶ 43; compare State v. Tanner, 9th Dist. Medina No. 3258-M, 2002-Ohio-2662, ¶ 21 

(“[t]o establish self-defense for the use of less than deadly force in defense of one’s 

person, the defendant must prove: (1) he was not at fault in creating the situation which 

gave rise to the event in which the use of non-deadly force occurred; (2) he had honest 

and reasonable grounds to believe that such conduct was necessary to defend himself 

against the imminent use of unlawful force; and (3) the force used was not likely to cause 
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death or great bodily harm”). “[O]ne who claims the lawful right to act in defense of 

another must meet the criteria for the affirmative defense of self-defense.” (Citation 

omitted.) State v. Koch, 2019-Ohio-4099, 146 N.E.3d 1238, ¶ 63 (2d Dist.).

{¶22} With respect to sufficiency, Heald argues that “any physical activity that took 

place on his behalf [by him] was in defense of Scheibelhoffer” and the “State failed to 

adequately provide evidence that this was not a case of defense of other.” Brief of 

Appellant, at 10. Heald’s claims rest on Thompson’s testimony regarding the 

circumstances in which he struck her. There had been earlier disputes between 

Thompson and Scheibelhoffer regarding their children and the use of racial slurs. On the 

night in question, May 16, Scheibelhoffer had parked in a space reserved for Thompson. 

According to Thompson:

They [Scheibelhoffer and Heald] was parked in my parking spot after 

calling me a n***er. * * * I walked up to Crystal and asked her who 

she was calling a n***er. * * * She continued to walk away from me 

and * * * we kept walking until she got onto her porch. * * * She 

entered her house and didn’t come back outside. I followed her the 

whole way and onto her porch and I stopped and I never went in her 

house. * * * I didn’t initiate anything. I didn’t put my hand on that 

woman. * * * I said, “who are you calling n***er?” If I was a little 

loud, I was loud. * * * I asked her * * * to come back outside if she 

was that bold. She did not come out the door. * * * Of course I 

wasn’t calm. They was parked in my parking spot, calling me a 

n***er, their kids always messing with my kids and I can’t say 

anything to them like adults?

{¶23} These circumstances do not tend to support a prima facie case for the use 

of non-deadly force in defense of another, specifically, that Heald had a genuine belief 

that Scheibelhoffer was in imminent danger of bodily harm. Without more, merely being 

loud or upset or yelling at someone does not constitute an imminent danger of bodily 

harm. Thompson had not touched Scheibelhoffer and Scheibelhoffer was inside her 
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house while Thompson remained outside with an open door between them. State v. 

Davis, 10th Dist. Franklin No. 17AP-438, 2018-Ohio-58, ¶ 32 (in rejecting a claim of selfdefense, the court “considered the lack of record evidence beyond the cursing and loud 

talking”). 

{¶24} Moreover, Heald’s conduct was not reasonable inasmuch as he struck 

Thompson before he could have ascertained the need to use force. Thompson described 

him as coming “out of nowhere” and Doss testified that he “ran up behind” her. Heald 

may have believed Scheibelhoffer was in danger, but there is nothing to suggest he was 

in close enough proximity to confirm or dispel this belief. In this respect, we endorse the 

judgment of the municipal court that “it was reasonable for [Heald] to go over there and 

to address whatever he thought needed to be addressed, but * * * he could have 

addressed that without * * * a physical altercation.”

{¶25} Similarly with respect to the weight of the evidence, Heald argues “the State 

did not demonstrate * * * that [he] was not acting in the defense of Scheibelhoffer,” i.e., 

that the State “failed to adequately address [his] position that any physical action on his 

behalf towards Thompson was justified to protect Scheibelhoffer from harm by 

Thompson.” Brief of Appellant, at 6. As noted above, the evidence in the record does 

not establish a prima facie case for the use of force in defense of another. Accordingly, 

the State’s burden of persuasion to disprove at least one of the elements of defense of 

another beyond a reasonable doubt never became operative. Petway at ¶ 55.

{¶26} The first and fourth assignments of error are without merit.

{¶27} Heald’s third assignment of error raises a claim of ineffective assistance of 

counsel.
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{¶28} “Counsel’s performance will not be deemed ineffective unless and until 

counsel’s performance is proved to have fallen below an objective standard of reasonable 

representation and, in addition, prejudice arises from counsel’s performance.” State v. 

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus; State 

v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000). With respect to counsel’s 

performance, the defendant must demonstrate that “counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984). The element of prejudice means “that counsel’s errors were so serious as to 

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. “Unless a 

defendant makes both showings, it cannot be said that the conviction or death sentence 

resulted from a breakdown in the adversary process that renders the result unreliable.” 

Id.

{¶29} Heald maintains that counsel was ineffective by failing to call Scheibelhoffer 

as a witness: “Being that Heald’s position appears to be that any action taken by himself 

was in defense of Ms. Scheibelhoffer, it was imperative that she testify. Without her 

testimony, it was arguably difficult to persuade the trial court that Heald’s actions were 

justified. Had Ms. Scheibelhoffer testified about her fear and/or risk of physical harm, 

Heald’s arguments that his actions were justified would have been more credible.” Brief 

of Appellant, at 8.

{¶30} We find no error. “The mere failure to subpoena witnesses is not a 

substantial violation of an essential duty to a client in the absence of [a] showing that [the] 

testimony * * * would have assisted the defense.” (Citation omitted.) State v Johnson, 
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9th Dist. Summit No. 27813, 2016-Ohio-8286, ¶ 20. It is granted that testimony from 

Scheibelhoffer that she feared physical harm would have made Heald’s argument more 

credible. However, there is no evidence that Scheibelhoffer actually feared physical 

harm. Any supposition as to what Scheibelhoffer’s testimony would have been is purely 

conjectural. Heald’s ineffective assistance argument necessarily fails for lack of 

supporting evidence in the record.

{¶31} The third assignment of error is without merit.

{¶32} For the foregoing reasons, Heald’s conviction for Assault is affirmed. Costs 

to be taxed against the appellant.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.