[Cite as State v. Worthington, 2024-Ohio-1714.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. Patricia A. Delaney, P.J.

 Plaintiff-Appellee : Hon. William B. Hoffman, J.

: Hon. Andrew J. King, J.

-vs- :

:

BRAD WORTHINGTON : Case No. 23-CA-00004

:

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, 

Case No. 21CRB00786

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 3, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TRICIA M. MOORE MAX SUTTON

40 West Main Street 3 North 3rd Street

Newark, OH 43055 Newark, OH 43055
Licking County, Case No. 23-CA-00004 2

King, J.

{¶ 1} Defendant-Appellant Brad Worthington appeals the April 26, 2022 judgment 

of the Licking County Municipal Court. Plaintiff-Appellee is the State of Ohio. We affirm 

the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On June 12, 2021, Worthington and his live-in-girlfriend T.D. attended a 

charity poker run. The couple left home around 1:00 in the afternoon. Worthington was 

angry with T.D. before they left because she had allowed him to sleep longer than he had 

intended and they had missed the start of the poker run. 

{¶ 3} The two caught up with other participants at one of the bars on the ride. The 

event took them to five different bars where both consumed alcohol. At the second to last 

bar, Worthington was gesturing with his hands while talking and accidently struck T.D. in 

the jaw. The strike was so hard that T.D.'s teeth made a loud noise when they collided. 

When Worthington continued his conversation, T.D. tried to address the matter. 

Worthington told her she was fine and to get over it. This interaction drew the attention of 

other patrons. When a woman attempted to confront Worthington about striking T.D. 

Worthington grabbed the woman and jerked her, causing her husband to enter the fray. 

Punches and a beer bottle were thrown before the two were separated. T.D. managed to 

get Worthington to leave immediately after. 

{¶ 4} On the ride to the last bar, Worthington was furious with T.D. and accused 

her of undermining him by telling people he had hurt her. He was being very loud when 

they pulled into the parking lot of the last bar. T.D. spotted a deputy sheriff in the parking 

lot and assumed he was there due to the incident at the last bar. T.D. put her hand up to 
Licking County, Case No. 23-CA-00004 3

Worthington’s mouth to signal him to quiet down so as not to draw the attention of the 

deputy. But at the same moment, Worthington popped the clutch on the bike, causing 

T.D.’s hand to strike Worthington’s face. He then accused her of assaulting him. 

{¶ 5} As they entered the bar, Worthington joked with the deputy about how fast 

he arrived, but discovered the deputy was not there for him. The two left the bar for home 

at around 2:30 a.m. Worthington remained angry.

{¶ 6} Once home, Worthington dropped T.D. off in front of the house. He then

rode the bike to the barn where he ended up laying the bike down. This made

Worthington’s mood worse. When he entered the house, T.D. was near the sliding glass 

door letting the dogs out. Worthington went to the bedroom where he removed his 

prosthetic leg. He then returned on his crutches to where T.D. was still standing tending 

to the dogs. He again berated T.D. for making him look bad in front of others, told her she 

had no idea what it was like to be hit by a man, and that he was going to show her. He 

then grabbed T.D. by the neck and threw her out the out the sliding door onto the deck. 

T.D struck her head, shoulder and back on a brick fire pit near the deck.

{¶ 7} Worthington then dragged T.D back into the house by her hair and into the 

bedroom. T.D. tried to resist being dragged into the bedroom by grabbing the edge of the 

doorframe. Worthington smashed her arm with the door to get her to let go. He then began 

striking her repeatedly with his crutches and pressed a pellet gun to her eyes. At one 

point T.D. grabbed a bat to defend herself, but when Worthington lunged toward her as if 

to grab it, she threw it away from herself. T.D. began vomiting blood which annoyed 

Worthington. He told her to be an adult, stop getting blood on the carpet, and to go to the 

bathroom if she was going to vomit.
Licking County, Case No. 23-CA-00004 4

{¶ 8} The assault went on for some time. When T.D. would try to get up and leave, 

Worthington would prevent her from doing so. Eventually, he fell asleep. T.D. heard one 

of the dogs, which was still outside, barking. She asked Worthington if she could let the 

dog in and he permitted her to do so. T.D. took the opportunity to leave the house and 

walk to her parents home a short distance away. As she was walking down the road, she 

heard Worthington yell that she should think carefully about what she was doing.

{¶ 9} Upon arrival at her parents’ home, T.D. displayed obvious injuries, was 

nauseous, vomiting, and disoriented. She resisted calling police, so her parents called. 

T.D.’s mother cleaned blood off of T.D.’s face and took photos of T.D. Responding 

paramedics and later a forensic nurse and Licking County Sheriff’s Deputy noted bruising 

over most of T.D.’s body.

{¶ 10} Deputies went to Worthington’s residence to discuss the matter but 

Worthington did not come to the door for several hours. When deputies did talk to 

Worthington, he denied striking T.D. except for the accidental strike at the bar. Asked 

about the bruising to T.D.’s body, Worthington stated T.D. bruises easily due to a 

medication she takes, and is out of control when she is drinking. Asked about the injury 

to T.D.’s head, Worthington stated T.D. fell down in the bedroom and must have hit her 

head.

{¶ 11} Worthington was subsequently charged with one count of domestic violence 

and one count of assault, both misdemeanors of the first degree. Worthington pled not 

guilty to the charges and opted to proceed to a jury trial which took place on April 25, 

2022. After hearing the evidence and deliberating, the jury found Worthington guilty as 
Licking County, Case No. 23-CA-00004 5

charged. Following merger of the counts, the trial court sentenced Worthington to 60 days 

jail time for domestic violence, and two years of probation.

{¶ 12} Worthington filed a pro se appeal which was dismissed for want of 

prosecution. Worthington later filed a motion for delayed appeal, which we granted on 

March 6, 2023. Worthington raises two assignments of error as follow:

I

{¶ 13} "APPELLANT’S CONVICTIONS WERE CONTRARY TO THE MANIFEST 

WEIGHT OF THE EVIDENCE."

II

{¶ 14} "THE APPELLANT WAS DENIED A FAIR TRIAL IN VIOLATION OF THE 

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO 

CONSTITUTION DUE TO THE INEFFECTIVENESS OF COUNSEL."

I

{¶ 15} In his first assignment of error, Worthington argues his convictions are 

against the manifest weight to the evidence. We disagree.

{¶ 16} On review for manifest weight, a reviewing court is to examine the entire 

record, weigh the evidence and all reasonable inferences, consider the credibility of 

witnesses and determine "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. Martin, 20 Ohio 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 
Licking County, Case No. 23-CA-00004 6

541 (1997). The granting of a new trial "should be exercised only in the exceptional case 

in which the evidence weighs heavily against the conviction." Martin at 175.

{¶ 17} Because Worthington does not challenge the sufficiency of the evidence, 

he necessarily concedes that the state produced sufficient evidence to prove Worthington 

knowingly caused or attempted to cause physical harm to T.D., a family or household 

member, and/or knowingly caused or attempted to cause physical harm to T.D. His 

arguments here are limited to his contention that his version of events was believable 

while T.D.’s version of events was not.

{¶ 18} Worthington points to 1.) inconsistencies between T.D.’s testimony at trial 

and her testimony at a civil protection order hearing, portions of which counsel for 

Worthington introduced into evidence; 2.) inconsistencies and omissions in T.D.’s 

accounting of events to detectives the morning of the assault and her trial testimony; 3.) 

the fact that photos T.D. took of the house before leaving showed blood in various areas 

of the house and photos taken by deputies at the scene did not; and 4.) photos of T.D.’s 

neck did not show evidence of strangulation. 

{¶ 19} We have reviewed the entire record and find this is not an exceptional case 

wherein the evidence weighs heavily against conviction. To the contrary, photos of T.D. 

show extensive bruising over her entire body which are inconsistent with Worthington’s 

explanations, and which render Worthington’s arguments unconvincing. Simply because 

T.D.’s neck did not show outward signs of strangulation does not negate the injuries to 

the rest of her body. Further, while Worthington argues extensively that there was no 

blood found in the house as T.D. stated there would be, he ignores the fact that he failed 

to answer the door for several hours after deputies arrived at his home. Transcript of trial 
Licking County, Case No. 23-CA-00004 7

(T.) 224. The jury could have reasonably concluded Worthington cleaned up any blood 

evidence. Moreover, the jury could have completely disregarded the blood evidence issue 

and still convicted Worthington based on the remaining overwhelming evidence of 

physical harm.

{¶ 20} The jury heard all the evidence of inconsistencies, viewed all of the 

photographs, and listened to Worthington’s testimony. The jury was free to believe all, 

part, or none of any witnesses’ testimony. We find the jury did not lose its way sorting out 

the inconsistencies, making its credibility determinations, and convicting Worthington. 

{¶ 21} The first assignment of error is overruled.

II

{¶ 22} In his final assignment of error, Worthington argues his counsel rendered 

ineffective assistance. We disagree.

{¶ 23} To prevail on a claim of ineffective assistance of counsel, a defendant must 

demonstrate: (1) deficient performance by counsel, i.e., that counsel'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 but for counsel's errors, the 

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 sufficient to undermine confidence in the outcome." Strickland 

at 694, 104 S.Ct. 2052.

{¶ 24} Because there are countless ways to provide effective assistance in any 

given case, judicial scrutiny of a lawyer's performance must be highly deferential. 
Licking County, Case No. 23-CA-00004 8

Strickland, 466 U.S. 668 at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. "Decisions on strategy 

and trial tactics are granted wide latitude of professional judgment, and it is not the duty 

of a reviewing court to analyze trial counsel's legal tactics and maneuvers." State v. 

Quinones, 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 18. Decisions about which 

witnesses to call involve matters committed to counsel's professional judgment. State v. 

Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 127 "Generally, counsel's 

decision whether to call a witness falls within the rubric of trial strategy and will not be 

second-guessed by a reviewing court." State v. Treesh, 90 Ohio St.3d 460, 490, 739 

N.E.2d 749 (2001).

{¶ 25} Worthington first argues his counsel performed deficiently when he 

informed the jury during voir dire that this was his first jury trial and apologized to everyone 

except Worthington for that fact. A review of the record reveals counsel did advise the 

jury this was his first jury trial and indicated his presentation may not be as practiced and 

polished as the state’s. Counsel then asked jurors if they could agree to hold any 

awkwardness against him and not Worthington, and all jurors agreed they could follow 

that directive. T. 16-17. Worthington does not explain how this exchange and counsel’s 

failure to apologize to him amounts to performance below an objective reasonable 

standard, nor how it prejudiced him. Everyone has a first day. We find it was not 

unreasonable for counsel to inform the jury that this was his first day and to ask that any 

awkwardness in his presentation not be held against his client.

{¶ 26} Next Worthington argues counsel’s failure to subpoena T.D.’s cell phone 

and Facebook records constitutes ineffective assistance. We note, however, that even 

though counsel did not subpoena these records from T.D.’s cell phone provider or 
Licking County, Case No. 23-CA-00004 9

Facebook, counsel nonetheless cross-examined T.D. regarding text messages and 

Facebook posts which appeared to come from her accounts. Further, the exhibits were 

admitted into evidence. T. 129-135, Defendant’s exhibits B-K. Worthington argues that 

had counsel subpoenaed the records, T.D. would not have been able to deny making the 

Facebook posts wherein she allegedly exaggerated her injuries. We find this argument to 

be speculative. Moreover, Worthington again fails to demonstrate prejudice. The state 

was not required to prove serious physical harm, but merely physical harm.

{¶ 27} Worthington's third argument states counsel rendered ineffective 

assistance by failing to subpoena essential witnesses. He lists four witnesses counsel 

should have subpoenaed, but fails to indicate how these witnesses were essential or how 

their testimony would have changed the outcome of the trial. We therefore reject this 

argument.

{¶ 28} Worthington next makes several arguments pertaining to debatable trial 

tactics by trial counsel. He faults counsel for failing to object to and move to strike 

unresponsive testimony elicited from T.D., for eliciting inadmissible and prejudicial 

testimony from T.D. regarding prior instances of domestic violence, T.D.'s offer to 

dismiss the charges if Worthington signed over ownership of a truck they jointly owned, 

and use of text messages between the two wherein T.D. references a felony violation of 

a protection order. 

{¶ 29} While it is impossible to discern counsel's motivation, a review of the 

transcript suggests counsel sought to paint T.D. as over-reactive, attention seeking, and 

as exaggerating her injuries. We first note that "[d]ebatable trial tactics do not establish 

ineffective assistance of counsel." State v. Hoffner, 102 Ohio St.3d 358, 811 N.E.2d 48, 
Licking County, Case No. 23-CA-00004 10

2004-Ohio-3430, ¶ 45. Second, even if we were to find counsel did perform deficiently 

by failing to object and by eliciting otherwise inadmissible evidence, the fact remains 

that the photographic evidence in this matter overwhelmingly establishes T.D. suffered 

extensive injury. Worthington cannot therefore establish prejudice. 

{¶ 30} Worthington next argues counsel should have requested the appointment 

of a forensic physician to assess whether T.D.'s injuries were caused by self-harm or 

other means. However, "[t]he presentation of mitigating evidence is a matter of trial 

strategy." State v. Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997). This is true even 

if counsel's chosen strategy proves unsuccessful. State v. Frazier, 61 Ohio St.3d 247, 

255, 574 N.E.2d 483 (1991). Counsel thoroughly cross-examined the state's witnesses 

regarding the origin of T.D.'s injuries. While Worthington argues the appointment of a 

forensic physician would have been essential to his case, his reasoning is speculative

and further fails to indicate how such appointment would have changed the outcome. See 

State v. Foust, 105 Ohio St.3d 137, 153-154, 2004-Ohio-7006, 823 N.E.2d 836, ¶¶ 97–

99 (trial counsel's failure to request funds for a DNA expert, an alcohol and substanceabuse expert, a fingerprint expert, and an arson expert did not amount to ineffective 

assistance of counsel because appellant's need for experts was "highly speculative" and 

counsel's choice "to rely on cross-examination" of prosecution's expert was a "legitimate 

tactical decision.")

{¶ 31} Worthington next faults his trial counsel for failing to object to the forensic 

nurse's testimony regarding the possible method of injury when she was never tendered 

as an expert. His transcript references are to the state's questioning of the forensic nurse 

and photos she took of T.D.'s injuries. T. 241. When the state asked the nurse about 
Licking County, Case No. 23-CA-00004 11

"what type of bruises" the photos showed, counsel for Worthington did object and a 

sidebar took place. The side bar conversation is not contained in the record. T. 242. Upon 

returning to questioning, however, the state moved away from asking the forensic nurse 

how specifically the injuries could have been inflicted. T. 243. We therefore find nothing 

to support a claim of ineffective assistance of counsel in this instance. 

{¶ 32} Worthington also faults his counsel for failing to object to testimony from 

Detective Clark regarding general progression of bruising and whether or not T.D.'s 

injuries could have been consistent with falling off a motorcycle. Even if we were to find 

counsel should have objected to this testimony, we would still find Worthington has failed 

to demonstrate prejudice. T.D. testified as to how she received her injuries and 

photographs were taken of those injuries. The photographic evidence in this matter 

speaks for itself. 

{¶ 33} Worthington further faults counsel for failing to object to T.D.'s testimony 

regarding how she received her injuries. He also takes issue with counsel failing to object 

to testimony from T.D. regarding blood at the scene when no testing was ever done to 

determine whether the blood belonged to T.D. But T.D.'s testimony as to what she 

experienced and witnessed is not objectionable testimony and the state is not required to 

conduct forensic testing. 

{¶ 34} Finally, Worthington argues counsel should have objected to the admission 

of State's Exhibit 7, which it the report of the forensic nurse. Worthington argues counsel 

should have objected to the admission of this exhibit because it is allegedly filled with 

prejudicial evidence against him. Worthington fails to specify, however, exactly what 
Licking County, Case No. 23-CA-00004 12

prejudicial evidence is contained in the report and we decline to make his arguments for 

him.

{¶ 35} The evidence in this matter was overwhelming. Thus, even if we found 

counsel's performance fell below an objective standard of reasonable representation in 

any of the above instances, Worthington still cannot demonstrate he was prejudiced 

thereby. The final assignment of error is overruled.

{¶ 36} The judgment of the Licking County Municipal Court is affirmed. 

By King, J., 

Delaney, P.J. and

Hoffman, J. concur.