IN THE SUPREME COURT OF OHIO
Supreme Court STAT'E OF OHIO Case No. 09-- .® 379
Appellee, On Appeal from the VS. Williams County Court of Appeals, Sixth Appellate District RANDALL D. SNYDER Court of Appeals Appellant. Case No. WM-08-004
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT RANDALL D. SNYDER
WII..T IAM F. KLUGE Atto;^ney Reg. No. 0022433 124 South Metcalf Street Lima, Ohio 45801 (419) 225-5706 Fax No.: (419) 225-6003
COUNSEL FOR APPELLANT, RANDALL D. SNYDER
THCsiti'IAS A. THOMPSON, #0068787 Prosos:,Ating Attorney Wiiliains County, Ohio 121(^i:vV: High Street Bryan, Uhio 43506 (419) 636-4411 CLFnk OF COIJRT Fax i`io.: (41 9) 636-3919 SUPREMECOUR I" 0rQN^® COUNSEL FOR APPELLEE, STATE OF OHIO
eisii . TABLE OF CONTENTS
PAGE
EXPL'ANATION OF WHY THIS CASE IS OF PUBLIC OR f.:I2EAT GENERAL INTEREST AND INVOLVES A FELONY ...... 1
STA'mEMENT OF CASE AND FACTS ...... I
ARGNMENT IN SUPPORT OF PROPOSITION OF LAW ...... 6
1tit: Proposition of Law I: Trial counsel's dual representation of the 1 Appellant and Co-Appellant without informed written consent violated Rule 1.7 of the Rules of Professional Conduct and resulted in a violation of the Confrontation Clause pursuant '^, to U.S. v. Bruton (1968), 391 U.S. 128, 88 S. Ct. 1620 ...... 6
Proposition of Law II: Dental records which are not self -authenticating pursuant to R.C. 2317.422 are inadmissible under Evid. R. 901 unless authenticated or identified by a witness with knowledge ...... 8
Proposition of Law III: A conviction must be reversed and the matter remanded for a new trial when, due to the affirmative defense of self- defense, the conviction is not based upon sufficient evidence and is against the manifest weight of the evidence ...... 11
Proposition of Law IV: The cumulative effect of trial counsel's deficient performance denied'the Appellant the effective assistance of counsel in violation of the Sixth Amendment ...... 13
,.. COP?"LUSION ...... 15
CERTIFICATE OF SERVICE ...... 16
APPEN DIX ...... 17
i Appx. Pages
Decision and Judgment Entry of the Williams County Court of Appeals (January 9, 2009) ...... 24
Judgment Entry of Sentencing (January 23, 2008) ...... 3
Judgment Entry of Conviction (December 17, 2007) ...... 2
ii EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A FELONY
This case presents an issue of public or great general interest, and involves a
felony, since only this Court has jurisdiction over the issue of whether an attorney
violated the Rules of Professional Conduct by dual representation of co-defendants at a
joint trial, witliout obtaining informed written consent for such dual representation.
The issue is of great public interest in that the appellate court lacked jurisdiction
to determine same, even when raised in the context of voiding or reversing the judgment
of the trial court, and therefore this is the only venue for which the Appellant can seek
relief.
This case also involves a great public interest concerning the admissibility of
unauthenticated, improperly identified and non-self-authenticating dental records.
Moreover, this case concerns the cumulative effect of trial counsel's deficient perfo.r. nance and whether same rises to the level of a Sixth Amendment violation of
inef£ective assistance of counsel.
STATEMENT OF CASE AND FACTS
In January 2005 Noah Snyder ("Noah"), the Appellant, Randall D. Snyder's
("Randall") son, purchased a seven acre tract of farm land on the corner of County
Roact 17 and County Road D in Bryan, Williams County, Ohio.
In contemplation of putting in a driveway to access the property, and after some.discussion with his neighbor, Quinn Michael ("Quinn"), concerning the boundary line, Noah had the property surveyed in the spring of 2005. Further, Noah and the Appellant placed wooden stakes on the appropriate corners to mark the
1 boundaries, which evidenced that part of what Quinn thought was his land actually
belonged to Noah.
In the summer of 2005, Noah had cement and dirt hauled in to constiuct the
driveway and it was piled in the back corner of the properties, partially on Quinn's
land. Prior to the survey, Quinn had informed Noah that when he was ready to
construct the driveway he could pile the dirt and cement on the property, which Quinn
mistakenly thought was his. For approxima.tely two years, the pile of dirt remained in
the back corner of the properties without any indication from Quinn that it was a
prob3em.
Iiowever, on Friday, May 25, 2007, while Noah and the Appellant were
mowing the property, Appellant found one of the stakes in the yard. When the
Appellant retumed the stake to its original location Quinn started rubbing his eyes and
statdboohoo hoo, what is the big deal it's just a property stake. In response, the
Appefiant told Quinn to leave the stalces alone and mind his business, resulting in
f l Quinii becoming irate and telling Noah to get the dirt off his property or he would
have someone remove it. Later that night Noah contacted a friend and arranged for
him to come over the following day and remove the dirt using Noah's bulldozer.
On Saturday, May 26, 2007, Noah arrived home from worlc around noon and
while inside with his family heard the bulldozer start up in his barn. Approximately twenFu minutes later, Noah heard the bulldozer as it returned to the barn and therefore, he went outside. When Noah exited his back door he observed Quinn
dumping a load of dirt onto his property with a skid steer.
u Noah walked back to the area and stood on the dirt pile, resulting in Quinn
2
0 backing up, pointing the skid steer toward him, instructing Noah to move or he would run him over and driving toward Noah. To avoid being hit in the right leg Noah moved to his left, Quinn turned the skid steer around and headed towards his house and Noah picked up a piece of plastic PVC pipe, which was laying aroLmd the pile, and threw it at the skid steer.
Noah returned home and telephoned the Appellant for advice, resulting in the
Appellant's arrival shortly thereafter and the two of them walking over to Quinn's property. As they walked toward the front of Quinn's house, Quinn emerged from the baekruptly tarned on the skid steer and met Noah and the Appellant right in front of his'house.
Upon Noah and the Appellant coming witliin four to six feet of Quinn he jumped off the skid steer, lifted his shirt, pulled out a gun, pointed it at them and stated it's loaded, the safety is off and I will shoot. Upon observing the gun, Noah pushed the gun away, got Quinn in a headlock, or bear hug, forcing him backwards and 'A ppellant grabbed both of Quinn's arms and held the gun up in the air. The three stumbled across the sidewalk and porch steps causing them to fall onto the porch. As
Appellant continued holding the gun, Noah struck Quinn's forearms three to four times.trying to get him to release the gun, there was a bang and the window shattered.
The Appellant finally pulled the gun out of Quinn's hands, rolled over and stoori iip, holding the gun downwards when Deputy Moser arrived and ordered the
Appeilant to drop the gun. Randall turned around to see who it was, recognized the
, , Deputy and threw the gun into the bushes. The Deputy ordered Noah and the
Appellant to stand up against the wall, while Quinn remained in the sidewalk area.
3 Appellant yelled that Quinn was crawling toward the gun and as Quinn
refused to comply with Deputy Moser's orders to get back on the sidewalk, he was
handcuffed and placed under investigative detention.
Deputy Moser requested that the Appellant assist him in locating the gun, then
instructed Noah and Appellant to go stand by their pickup truck while he spoke with
Quinn until EMS arrived and attended to him.
Upon the airival of Deputy Zimmann, he spoke with Deputy Moser and upon
his reqiuest went and spoke with Noah and the Appellant. After Quinn was transported to r. the li^ypital, Deputy Moser spoke with Noah and Appellant, who agreed to drive to the
sheriff's department and write out statements. After obtaining said voluntary
statements, Deputy Moser telephoned Prosecuting Attorney Thompson who
authofized the arrest of Noah and the Appellant for simple assault, criminal trespassing and criminal damaging. Shortly after being taken into custody for the misdemeanor offenses, Noah and the Appellant were released upon posting bond. > ;. A{):i, On May 31, 2007 a complaint was filed in the Bryan Municipal Court for one couiiY, of felonious assault. After waiving a preliminary hearing on June 12, 2007 the matter was bound over to the grand jury.
The Appellant was indicted on June 20, 2007 for one count of felonious assaL:;t, a felony of the second degree, in violation of R.C. 2903.11 (A), and one count of vandalism, a felony of the fifth degree, in violation of R.C. 2909.05 (A).
An•aignment was had on July 11, 2007 whereby the Appellant was released upon^a personal recognizance bond and to comply with the temporary protection order. A pretrial hearing was scheduled on August 20, 2007 and after same the
4 matter was assigned for jury trial.
. On December 12, 2007, after a three day trial, the jury acquitted the Appellant of the vandalism charge and returned a guilty verdict on the felonious assault. The trial court revoked the bond and continued the sentencing hearing pending the prepasation of a pre-sentencing investigation. On December 17, 2007 a judginent entry of conviction j ounializing the verdict was filed.
On December 14, 2007 the Appellant requested work release pending senteI:cing and same was granted on December 18, 2007 over the objection of the prosx.cuting attorney.
Sentencing was had on January 22, 2008 whereby the trial court imposed a four year prison term, ordered restitution in the amount of $2527.44 and three years of mandatory post release control supervision. As said sentence was journalized on
January 23, 2008, the Appellant filed a motion for bond pending appeal on January
28, A08, which was denied by the trial court on January 30, 2008.
On February 6, 2008 the Appellant filed a notice of appeal and motion for release on bail and suspension of the execution of sentence. On February 14, 2008 a motion to consolidate with the companion case, WM-08-005, for purposes of a single trans<;ript was filed and same was granted by the court of appeals on February 21,
2008.
On March 31, 2008 said court granted bond pending appeal. On April 1, 2008 the A; iellee filed a motion to vacate and file a response instanter or motion for reconsideration. On Apri12, 2008 the court of appeals stayed the order of release and granted the Appellee leave to file a response to the motion for release on bail and
5 suspf;::sion of sentence. On April 4, 2008, the Appellant filed an objection to the granting of leave and a response to the motion for reconsideration. On April 14, 2008, the court of appeals denied the reconsideration request and reinstated its March 31,
2008 ^-•der staying further execution of sentence and granted release on bond.
On January 9, 2009, the court of appeals issued its opinion affirming the
Conviction and it is from this judgment that the Appellant requests this Court to accept jurisdiction.
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
ProDOsition of Law I: Trial counsel's dual representation of the Appellant and Co-An^pellant without informed written consent violated Rule 1.7 of the Rules of Pro^'c^k^aional Conduct and resulted in a violation of the Confrontation Clause pursuant to U.S. v. Bruton (1968), 391 U.S. 128, 88 S. Ct. 1620.
The Appellant asserts trial counsel violated Rule 1.7 (b) and (c) of the Rules of
Profc^sional Conduct resulting in reversible error.
As the appellate court found it lacked jurisdiction and only this Court can deterrnine whether an attorney violated the Rules of Professional Conduct (Op. ¶ 35), this r0 3'tter is ripe for consideration since it is of great public interest.
T'he Appellant asserts that the requirement of the informed consent mandates counsel to discuss reasonable foreseeable ways a conflict could arise and adversely ..:,^. effect the client's interest; to discuss the risks and advantages, if any, of dual repre>.entation; to present the alternative of seeking other counsel and to provide the client:.ari opportunity to raise questions concerning the same attorney representing
. nnilC e clients in a single matter.
Further, Rule 1.0 (f) states:
6
.:: " `Informed consent' denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonable available alternatives to the proposed course of conduct." .c?at The Appellant and his son, the co-Appellant, were both indicted on June 20,
2007 and trial counsel filed an entiy of appearance in both cases on June 25, 2007.
The record is void that trial counsel discussed the potential conflict of interest of dual representation and the advantages and risks of the common representation. See,
Mod-.1, Rule Comment 18.
Pursuant to Rule 1.7 (b), counsel was required to discuss with each
Appel'iant whether a conflict of interest existed, as well as the potential for a conflict to arise, and obtain a written consent from both Appellants, independent of the other. See Model Rules 18 & 20.
The only time the conflict of interest issue was ever discussed was when ;;^ the tlrra court raised same, after opening statements (T. 12/10/07, pg. 132). The trial ^.giurt inquired concerning the Bruton rule, i.e. U.S. v. Bruton (1968), 391
U.S. 118, 88 S.Ct. 1620, where the admission of one defendant's statement inculpates the other defendant, resulting in a violation of the Confrontation
Clause (T. 12/10/07, pgs. 132-133).
Trial counsel informed the court that he would read the Bruton case and revieN the Appellants statements again (T. 12/10/07, pg. 135). Clearly, based upon coun.:;°;i's statement. this issue, nor the potential conflict of interest it raised, were ever discu:ised with Appellant.
7 After the lunch break counsel informed the court, outside the presence of the jiury, that he reviewed the substance of the Bruton decision and the statements withthe Appellants and they had no objection to the admission of the statements as to their guilt (T. 12/10/07. pg. 137). However, the record is void that either
Appellant executed an informed consent waiver for this or any other present or future conflict of interest. Thus, trial counsel violated Rule 1.7 (b) of the
Rules of Professional Conduct.
Undoubtedly, counsel cannot negotiate a plea negotiation for a lesser charge for one defendant at the expense of the other. Nor is counsel able to present competing defeq s`es at a j oint trial when representing co-defendants. Thus, counsel is prevented from zealously representing one or both clients.
Rule 1.7(a)(1)&(2).
Moreover, pursuant to Rule 1.7 (c) some conflicts cannot be waived as a matter of law. In Columbus Bar Assn. V. Grelle (1968), 14 Ohio St,2d 208, this Court held thaC regardless of consent an attorney may not represent both the husband and wife ^^.^;. in th`'reparation of a separation agreement
Therefore, the Appellant asserts that the dual representation by trial counsel violated Rule 1.7 and resulted in prejudice by foreclosing available defenses.
Furthermore, trial counsel's failure to obtain written consent is a clear violation of .< Rule 1.7(b).
Proposition of Law II: Dental records which are not self-authenticating pursilpnt to R.C. 2317.422 are inadmissible under Evid. R. 901 unless authenticated or identified by a witness with knowledge.
The admission of the dental records was not in accordance with the statute or
8 the evidence rules, nor were they authenticated by any witness with knowledge.
Therefore, the admission of said records resulted in an error of law and trial counsel's failurc to object resulted in plain error.
;:.,Crim. R. 52(B) states:
"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."
The court of appeals summarily concluded that the admission of the dental records did not rise to plain error (Op. ¶ 38). However, the appellate court failed to address whether the dental records were admitted contrary to Evid. R. 901 and R.C.
231'7^,22.
Pursuant to Evid. R. 901(A) a condition precedent to admissibility is authentication or identification. Evid. R. 901(B)(1) sets forth, by example, authentication or identification by the testimony of a witness with Imowledge.
Moreover, Evid. R. 90l(B)(10) and Evid. R. 902(10) both provide for admissibility pursuant to statute or rule. As noted in the dentist's cover letter, the 4; recoiul were provided pursuant to R.C. 2317.422. Thus, if the records were provided in accordance with the statute they wee self-authenticating and no extrinsic evidence was required. State v. Caudill, 2008-Ohio-1557, ¶49, citing
Evid. R. 902 (10) and State v. Perry (1996), 108 Ohio App.3d 709, 714.
However, pursuant to R.C. 2317.422(A), only records of hospitals, homes licensed by R.C. 3721.01 (nursing homes, veterans' homes, residential care facilities, etc.) and community alternative homes qualify as authentic records which are admissible, upon verified certification, in lieu of testimony. Thus, the
9 lyl
dentai records were not self authenticating thereunder. Further, records may not be qualified by certification unless the proponent provides the adverse party copies at least ive days prior to trial. R.C. 2317.422(A). Nor are they authenticated or admissible under_R.C. 2317.40 or R.C. 2317.41 without the testimony of the custodian.
On October 24, 2007 the Appellee filed a response to discovery which included a "copy of Quinn Michael's Bryan Dental Records, dated May 29, 2007 (two pages)".
Although Appellee filed six supplemental discovery responses none evidenced firrther dentaJ records.
At trial, the Appellee presented State's Exhibit 94, consisting of ten pages of deiitr ;ecords from Bryan Dental Group and a cover letter of November 6, 2007, which stated the records were being provided pursuant to R.C. 2317.422 (T. 12/10/07, pg 194).
The Appellee presented State's Exhibit 94 to Quinn, who identified it as Dr.
Gihnore's report and answered affirmatively that the exliibit accurately reflected the dental work performed due to the incident (T. 12/10/07, pg. 194). Based upon this extremely limited inquiry Appellee offered said exhibit into evidence and it was admitted J^:i withoiit objection (T. 12/10/07, pg. 194). On its face, the record fails to satisfy the cor,dition precedent by Quimi's response concerning the dental record. Absolutely no evidence was presented to establish that Quinmliad knowledge that the records were wliat
Appellee purported them to be. Evid. R. 901(A) & (B)(1). See, State v. Gunner, 2008-
Ohic<1857, ¶14-1[16.
The Appellee failed to elicit any testimony that Quinn had ever seen the records ;_ befo trial, had any knowledge of their contents based upon reviewing the records with his dentist or that he had some training or specialized lmowledge to actually read
10 the noCations contained in the records. Based upon the laclc of any foundation that
Quiiiii possessed the knowledge to identify, let alone authenticate, the dental records, they were inadmissible, as a matter of law, pursuant to Evid. R. 901(A).
The Appellant asserts that the dental records were inadmissible as a matter of law :? :-'^'i therefore the court of appeals failure to address satne is reversible error.
Proposition of Law III: A conviction must be reversed and the matter remanded for a new trial when, due to the affirmative defense of self-defense, the conviction is not based upon sufficient evidence and is against the manifest weig,':.:t of the evidence.
The Appellant asserts that the affirmative defense of self-defense was proven by the greater weight of the evidence and therefore the jury clearly lost its way, resulting in the ci?u^yiction creating a manifest miscarriage of justice. 4r^^
The test to establish self-defense was set forth by this Court in Caudill,
2008-Ohio-1577, at 182:
"***. To establish self-defense, appellant must show that (1) he `was not at fault in creating the situation giving rise to the affray'; (2) he had `a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of *** force'; and (3) he did not violate `any duty to retreat or avoid the danger.' State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus. The elements of self-defense are cumulative. ***:'
The Appellant asserts that the evidence clearly established that lie was not at fault in cr :ting the situation that gave risk to the altercation, based upon Quinn abruptly drivinr; the skid loader toward he and his father, jumping off, brandishing a gun, stating that tiie safety was off, it was loaded and he would shoot.
11 As Quinn was the only one with a handgun, coupled with his verbal threats, the
Appe,lant had a bona fide belief that he was in imminent danger of death or great
bodily harm and that the only reasonable means of escaping such danger was to use :b bodily force in an effort to prevent Quinn from using deadly force.
The Appellant asserts that it is reasonable for an unarmed man to believe i;: that he is in imminent danger of death or great bodily harm when threatened by an armed
man and that his only escape was physical force, even if he is mistaken in such belief. As
the Appellant's use of bodily harm to repel deadly force was not unreasonable, he did not
vioia'e any duty to retreat or to avoid the danger. See, State v. Williford (1990), 49 Ohio
St.3(J 247, 249, citing State v. McLeod (1948), 82 Ohio App. 155, 157.
Moreover, the Appellant asserts that since Quinn was the aggressor, he had
no dt^!y to avoid the danger. He could not merely turn his back to a man pointing a gun,
threatening he would shoot, and walk across the yard to return home. Clearly when
viewing the Appellant's position, and the circumstances and conditions surrounding him,
agai:i=,t Quinn's words, acts and overall conduct, it was not unreasonable for the , App(;i;ant to honestly believe he was about to be killed or receive great bodily harm.
The Appellant did not use more force than was reasonably necessary to avoid ^zk the apparent danger; nor was bodily force greatly disproportionate to the apparent
deab^c force. Thus, the record clearly establishes that the verdict created a manifest ,,. miscairiage ofjustice, for based upon the preponderance of evidence in support of self , 0 defense, the conviction is not supported by sufficient evidence and is against the
eight of all the evidence.
12 Proposition of Law IV: The cumulative effect of trial counsel's deficient performance denied the Appellant the effective assistance of counsel in violation of the Sixth Amendment.
The purpose of the Sixth Amendment guarantee of effective assistance of
counnel is "*** to ensure that criminal defendants receive a fair trial" Stricldand v.
Wasfa;ngton (1984), 466 U.S. 668, 689 and "*** to ensure that a defendant has the
assisCance necessary to justify reliance on the outcome ofthe proceedings. ***" Id. at
691-62.
In Stricldand, the United States Supreme Court established the test to determine effective assistance of counsel, which this Court adopted in State v.
Bralfiey (1989), 42 Ohio St. 3d 136, paragraph two of the syllabus.
The Defendant asserts that he was denied effective assistance of counsel for his 1n: counsel failed to object to the authenticity and admissibility of evidence; violated the
Rules of Professional Conduct by his dual representation, failed to discuss any poteriiial conflicts of interests and failed to obtain written informed consents waiving said conflicts. r,is• In addition, the Appellant asserts that trial counsel was also deficient in failir: to present a material witness; failing to present any character witnesses; failir.;r to present.an expert witness to refute the severity of the injuries and failing to objection to the jury instruction on complicity.
Firstly, the Appellant's son, Noah, testified that he had made airangements with.s is friend on May 25, 2007 to remove the dirt pile from Quinn's property (T.
12/1'.107, pg. 127). The following day Noah's friend came over to do so by using the
13 Noalr's bulldozer (T. 12/11/07, pg. 128). However, approximately twenty minutes
later Noah, who was inside his residence, heard the tractor drive back into the barn (T.
12/11/07, pg. 128). The Appellant asserts that his son's friend had firsthand knov,^ledge of Quinn's behavior prior to Noah ever going outside and he was a mate'r:a.l witness in support of his defense.
Secondly, the Appellant asserts that there were numerous witnesses who should have testified to his character, pursuant to Evid. R. 404(A)(1). As evidenced by the'trial court at sentencing, over fifty letters were received on behalf of the
Appellants (T. 1/22/08, pg. 2) and two character witnesses spoke on their behalf (T. 1) 1/22y0$, pgs. 5-7). 'i Thirdly, the Appellant asserts that trial counsel failed to attack the injuries, ^^:.. especfally the extent of the dental work, for Quinn testified that he had a root canal, six teeth capped and a bridge (T. 12/10/07, pg. 192) but it did not all result from the altercation (T. 12/ 11 /07, pg. 193).
Fourthly, trial counsel failed to explain, let alone zealously present the self v^P defense argument during his closing. Nor did he even attempt to argue that as an affirn`ative defense it negates a conviction of the charge.
Finally, trial counsel failed to object.to the jury instruction (T. 12/12/07, pgs. 3
& 39)for complicity (T. 12/12/07, pg. 53). The record is void of any evidence that the Appellants laiowingly had a common purpose in committing a-crime: The
Appu'?lants had no knowledge that Quinn would pull a gun and threaten to shoot by their. act of walking over to the front of his property to talk. Thus, said instruction
xJ,EU was unsupported by any evidence, clearly erroneous as a matter of law and confusing
14 to the jury.
The Appellant asserts that he was denied a fair trial based upon the deficient performance of coLmsel, that same clearly resulted in prejudice and undermines the reliability of the outcome of the trial.
Moreover, the Appellant asserts that even if this Court determines that the indiv.ir^ual acts of deficiency are harmless, the cumulative effect of same resulted in prejurlicial error which warrants a reversal of the conviction. State v. DeMarco
(1987), 31 Ohio St.3d 191, paragraph two of the syllabus. See State v. Taylor, 2008-
Ohio;1462, at ¶ 64.
^tt Therefore, Appellant was denied effective assistance of counsel, for counsel's perfo;mance fell below the reasonableness standard, resulting in the unreliability of the outcone of the trial and denying him the constitutional right to a fair trial.
CONCLUSION
As this case involves a violation ofthe Rules of Professional Conduct, which only this Court has jurisdiction to determine; admissibility of evidence; self defense and aa ineffective assistance of counsel, it is of public or great general interest concerning a ^'rr felornTlierefore, the Appellant request this Court accept jurisdiction so these issues can ;,.;. be ful'.y presented and reviewed on the merits.,
William F. Kluge, #0022433 Attorney for Appellant 124 S. Metcalf Street I;itna; Ohio 45901 (419) 225-5706 Fax (419) 225-6003 15 APPENDIX
17 r VL•ED GOURi OF FtF'F=ALS JAN --^ 2009 r KIM13ERLY hIERIViAWI GLER4C QF COLIFlTS vvIll_IAMS CQ. C71RI0
IN 'I•HE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
State of Ohio Court of Appeals No. WM-08-004
Appellee Trial Court No. 07-CR-070
V.
Randall D. Snyder DECISION AlmIF3 D-CTDOIYIENT ENTRY
Appellant Decided: iAX ^ 9 ZT113
Thoinas A. Thompson, Williatns County Prosecuting Attorney, for appellee.
William F. Kluge, for appellant.
-t :ti* **
HANDWORK,, J.
{¶ 1} This appeal is from the January 25, 2008 judgment of the Williams County
Court of Coinlnon Pleas, which sentenced appellant, Randall D. Snyder, follo-wing his jui}r conviction of violating R.C. 29031 1(A), felonious assault. Upon consideration of the assignnaents of error, we affLrni the decision of the lower court. Appellant asserts the following assignments of error on appeal:
^J FifiJA L _FJ.... ,` FI'C3;^, 4 ^ tt: 's^1F, .^.I.^.^_ OURIME.6ZED l. ,,1WMAd.•lZED D^.-FE<, f^Fj ,,,,I„^,^ {¶ 2} "ASSIGNMENT OF ERROR 1; TRIAL COUNSEL VIOLATED THE
RULES OF PROFESSIONAL CONDUCT BY HIS DUAL .REPRESENATION OF
APPELLANT AND CO-APPELLANT.
{¶ 3} "ASSIGNMENT OF ERROR II: TITE ADM[SSION OF THE DENTAL
R.ECORDS WAS AN ERROR OF LAW AND PLAIN ERROR.
{¶ 4} "ASSIGNMENT OF ERROR III: THE CONVICTION OF FELONIOUS
ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE
SUFFICIENCY OF THE EVIDENCE.
{t 5} "ASSIGNMENT OF ERROR IV: THE APPELLANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED UNDER THE SIXTH
A.MENDMENT TO THE UNITED STATES CONSITITUTION."
{¶ 61 Appellant was indicted on June 20, 2007, by a grand jury on charges of
felonious assault, a violation of R.C. 2903.11(A)(1), with a firearm specification, and
vandalism, a violation of R.C. 2909.05(A). The following evidence was admitted a trial.
{t 7} Doug Moser, a Williams County Sheriff Deputy, responded to a dispatch at
2:36 p.m. on May 26, 2007, regarding an assault in progress. He arrived at the scene at
2:42:45 p.m. with his lights and sirens off and parlced. in the driveway. His view of the fi•ont porch was blocked, but lhe could hear an ongoing struggle. When he was closer, he could see Quiiui Michael on the floor of the front porch with Noah and Randall Snyder standing over him. Randall Siiyder held a handgun in his left hand near Michael's head. Moser..overheard some mumbling and yelling, but could not make out any of their words.
Noah Snyder was holding a cell phone in his hand.
{T 8} While the deputy was trying to settle everyone down, Michael was moving
off the porch. The deputy was not sure if Michael was just trying to get away from the
Snyclers or was going after the gun that Randall Snyder had dropped into the landscaping.
But, because he had no baclcup, he handcuffed Mich.ael while he invastigated the
situation and placed Michael down on the sidewallt. After speaking to all of the parties,
he learued that Michael had the gun first and that the Snyders had talcen it away from
him.
{¶ 9} The deputy then retrieved the gun and secured it. The gun, which was later
determined to be operable, held one round in the cainber, which the deputy rernoved and
returned to the magazine clip. At the time of trial, the magazine clip contained ten
rounds. The deputy examined the gun and did not find any indication that it had been
fired. He and another deputy both testified that they examined the scene and could not
fincl a shell casing or bullet hole in the residence.
{T FQ} Deputy Moses took photographs of the injuries everyone suffered, Michael was having trouble breathing and moving. He also had minor cuts and biuises all over.
There did not appear to be any damage to Michael's hands. The deputy noted that a screw impression in Michael's back appeared to match the screw head in the mold'uzg along the fi•ont door. Michael's shirt, which was torn, had some partial footprints and blood stains on it, Randall Snyder had blood on liis arm, but the officer did not obsenie if it was from an injuiy or was someone else's blood. A photo talcen at the scene showed
lacerations on Randall's arm. Noah Snyder had injuries to his hand from the
confrontation. The deputy also photographed Randall Snyder's trucic sliowing that it was
parlced over the boundary line onto Michael's property. He also photographed a dirt pile
that was central to the dispute. It appeared to the deputy that the dirt pile was partially on
Michael's property.
{¶ 11} Conflicting testimony was presented about the nature of the relationship
between the parties. Michael testified that he and Noah Snyder have been neighbors for
about one year. Michael recalled approaching Randall Snyder in a neighborly manner
after the property had been purchased while Randall appeared to be trying to determine
the property line. When Michael inquired as to what they were planning on doing with the property, Randall had responded with epithets. Michael conveyed the information he had been told about the property lines. Michael also told Randall that he could use what
Michael thought at the tinle was his driveway to access their property. Shortly afterward, the Snyders had the property surveyed and marked off the boundaries and it was deterniined that Michael's understanding of the property line was incorrect.
{$ 12} Michael also testified that some tinne later, the Snyders gained Michael's permission to store brolcen up concrete on his property while they built a driveway.
Several montlis later, Michael inquired as to when the concrete would be removed because their driveway had been completed. The Snyders assured him that the concrete
4. would be reinoved soon. However, when the concrete remained for another couple of
months, Michael called the Willianls County Sheriff to make a report about the problem.
{113} Noa11 Snyder, however, described a neighborly relationship between Iiirn
and Michael. Noah recalled that after his pole barn/home was constructed in the winter
of 2005, Michael dropped by to coznpliment Noah on the barn and the builders. Noah
also recalled a time when he planted hundreds of trees along the property litle and, with
Michael's permission, planted extra trees on Michael's property and agreed to keep up the
area around the trees. Michael testified that he could not recall ever being asked by Noah
Snyder to plant evergreen trees on Michael's property.
{T 141 Randall Snyder testified, however, that while he had spolcen to Michael in
the past, he did not have much of a relationship witli him. Randall had rarely seen
Michael around. Yet, in his written statement made at the sheriffs office after the
incident whicli gave rise to the charges against him, Randall Snyder had indicated that he
had experienced prior problems with NIlchaet. Randall did testify at trial that a year
earlier there had been complaints made about the dirt on the road from the consttuction
on Noal-i's property and that Randall had been harassed about it by the sl7eriff deputy.
Randall suspected that Michael liad made the complaint.
{$ 15} The day before the incident involved in tl-iis case occurred, on May 25,
2007, Michael and the Snyders had an argument when Randall Snyder approached
Ivlichael concerning a re-rod that Michael had pulled out along the property line. Michael test'rfied that he told them he was coiacerned that his son would I:'all on the rod and injure
5, himself and that Randall Snyder had responded by telling Michael to leave the property
pins alone. Ran.dall and Noah told Michael to mind his own business and challenged him
to corne over onto their property so they could beat hirn. They called him names and
taunted him with epithets and religious slurs. At that time, Michael told them to get the
concrete off of his property or he would hire someone to move it and sue thern. Michael
took his farnily to a movie to get away from the area for three hours. After he returned
home, he decided to borrow a gun from a friend for protection, which he left in his truck,
{^(16} Nancy Michael, Michael's wife, who was present during this incident,
testified to the same factual events regarding this incident. Cody Michael, Michael's son
wlio was a fifth grader at the time, testified that he saw his father and the Snyders yelling
angrily at each across the property line that day.
{¶ 17} The Snyders, however, both testified that the facts surrounding this incident were different from what the Michaels portrayed. Noah Snyder testified that on May 25, he and his dad were mowing when they discovered that one of the boundary survey pins had been ripped out of the ground and was in tbe way of the mower. The pin was a 2x2 stalce. Randall Snyder put the stake back in the ground. When they confronted Michael, he whined about it and they told him to leave it alone. Randall Snyder testified that
Michael then mocked Iiim by rubbing his eyes and saying "boohoo." But, Randall just walked away. As Noah approached, Michael suddenly became irate and ordered them off of his property. He also told them to get the dirt pile that had been there for two years off tlle property. Michael told them if they did not renzove the dirt;. he would have it
6. removed and bill them. Noah Snyder told Michael to do what he wanted. But, Noah
Snyder called a friend that day to arrange to have hiin use Noah's bulldozer to move the
dirt the next day. The Snyders then went back to mowing. Randall denied malcing any
other comments. Noah denied ever threatening to beat Micliael up and denied making
religious slurs.
(¶ 18} The followhlg day, on May 26, 2007, the incident ihat led to the crimes
charged in this case occurred. Michael and his son, Cody, testified that Michael planned
on Lnalting a dirt bike trail in the area of his property along the property line adjoining the
Snyder property. He had rented a skid steer to push dirt that was piled up on his property
to form a trail. Michael asserted that he was just moving the dirt on his side of the
property back to Noah's property and from side to side to smooth out the area. Cody
watched his father moving the dirt while he also watched their dog in the backyard.
Michael testified that after he had inoved two loads of dirt, Noah Snyder came out and
stood on the dirt pile on his side of the line and asked Michael was he was doing.
Michael responded that he was moving the dirt and Noah told him he could not. Noah
tllen moved in front of the slcid steer so Michael could not move the dirt. When Michael
tried to move the skid steer to dump another load, Noah attempted to jump onto the
machinery.
($ 19} Noah Snyder testified to a different scenario. He recalled that he had heard
his bulldozer start up that day and then return 20 nainutes later. He went to investigate
why his £-iend had come back because the dirt could not have been moved that quickly.
7. When Noah went outside, he saw Michael moving the dirt and approached him to
question what Michael was doing. Noah walked up onto the dirt pile while Michael was
getting a load of dirt, Noah accused Michael of backing up the skid steer and swinging
the bucket around toward Noah. Noah yelled at Michael, who responded that he had
better move or he would run Noah over. Noah moved, but Michael still almost hit Noah's
leg. Micliael, however, denied tiying to run Noah over. While Noah stated that he
wanted to get at Michael, he denied ever trying to grab for Michael because he had a cage
surrounding him. However, in his written statements made to the deputy sheriff later that
day, Noah admitted that he tried to grab Michael while he was on the dozer.
{¶ 20} Michael testified that after Noah Snyder tried to grab him, he backed up
and swung the slcid steer around to leave the area. Michael testified that Noah grabbed a
PVC pipe covering one of the stakes on the propei-ty line and hit the side of the skid steer at least five times as Michael drove away. Noah admitted only to throwing a PVC pipe at the slcid steer out of frustration as Michael drove away. Cody Michael testified that he saw Noah Snyder come running out and around the skid steer. As his father drove toward the house, Cody savv Noah hitting the skid steer with a piece of PVC pipe. Dave
Wehrle, a contractor who had rented the slcid steer to Michael, testified that he had examined the skid steer and did not find any damage to it.
{Ii 21} Michael testified that as he was leaving the area, he saw Noah Snyder get on his backhoe, but it would not start. Noah testified, however, that after he threw the pipe, he returned to his barn and called his father to come over and help him talk it out
with Michael and settle thc matter.
{$ 22} Michael testified that as he headed back to his house on the skid steer he
was scared and motioned to his son get a cell plione. As Michael passed b), the porch, his
son handed him the phone and Michael called 911. Dawn Baldwiii, a 911 dispatcher who
took the calls that day, testified that Michael's call was automatically logged in at 2:36:43
and lasted 2 minutes and 50 seconds. While making the call, Michael testified, he drove
the sidd steer to his truck with the intent to get the gun he had stored in it. He stopped the
skid steer by his truck and juinped out to get the gun. He loaded a fu11 magazine clip and
racked a shell into the chamber. Because the 911 operator suggested that Michael get
into his house, he got back in the skid steer and drove toward his house. He could not see
Noah Snyder, but presumed he was hiding behind the equipment parlced in the area.
Michael took a longer route around his house to avoid driving over his concrete
driveway, which would have been damaged by the skid steer. He parlced the slcid steer facing his front door and intended to jump out forward and head straight to his front door.
{g 23} 1-Toah Snyder testified that after Michael drove away, Noah waited alongside his barn for his father to arrive. The Snyders testified that Randall arrived a few ininutes later. Deputy Moser testified that Randall had driven his car 15 feet beyond
Noah's driveway onto Michael's property. However, the Snyders testified that Randall was not upset at the time because he had not yet iearned the specifics of what had happened. Randall testified that he arrived very quickly because he was already driv^ing
9. and was only three minutes from the property. In his written statement made at the
sheriffs office on the day of the incident, Randall stated that he always drove over the
property line. However, at the time of trial, Randall testified that he did not normally
parlc in Michael's yard, but did so that day because that was where Noah had met him.
{¶ 24} The Stryders further testified that when Randall arrived, Noah informed
him how Michael had tried to hit him with the slcid steer. They decided to go over to
Michael's house to talk to him. The Snyders testified that as they walked up Michael's
driveway, they saw Michael driving in baclc of his house and then make an abrupt left
turn heading toward tllem, They aclcnowledged that had Michael wanted to tallc to thein,
he could have stopped the skid steer and met them. But, Noah and Randall testified that
they were headed to the front door and continued wallcing toward the skid steer after it had stopped at the front of the house.
{¶ 25} Michael testified that when he stopped near his front door, he juinped forward out of the skid steer and headed toward his door. He could see Randall and Noah
Snyder coming really fast toward him. Michael was not able to get his door open because his son had apparently loclced it. Michael told the Snyders that he had a loaded gun and that he would use it. He denied ever pointing it at the Snyders. The Snyders caught up with hirn next to the corner of his door and pushed him against the wall while malcing religious slurs to him. Both of the Snyders were hitting 1-iim, VJhen Michael tried to call 911, Randall grabbed the cell phone and broke it in half. Randall grabbed . Michael's wrist trying to take th.e gun from him. Michael warned him that the gun was
10. loaded and he did not lalow if the safety was on or not. As they struggled, Randall and
Michael fell into the glass window next to the door enough to srnash the glass, but not fall
all the way through. Michael fell to the ground. Randall got on top of hiin and was
trying to force the handgun toward Michael's llead. .Randall also continued to hit
Michael, Noah Sziyder was stoinping on Michael's face. Eventually, Michael let go of
the gun. The Snyders continue to stonlp on liis face and kick his abdonien. Randall kept
asldng Michael who else was in the house while he pointed the gun at Michael.
{¶ 26} Cody Michael testified that when his dad motioned for his cell phone, Cody
grabbed the phone and passed it to his father while he was still on the slcid steer. Cody
went back inside and locked the front door and stood nearby. He watched his father and
the Snyders while they were on the front porch. He did not see them fighting, but when
his father was thrown into the window, Cody called 911. The dispatcher testified that the
second call from Cody was automatically logged in at 2:40:29, with a brealc in the
conversation and then a second call logged at 2:42:50. In the middle of the conversation
with Michael's son, the sheriff deputy called in from the scene, approximately 2 minutes
21 seconds after Michael's call ended.
{q( 27} The Snyders testified to a different scenario. Noall testified that as they approached Michael's front door, Noali yelled to Michael to ask him why he had tried to hit Noah. Both the Snyders testified that when they were only tluee-to-four feet away from the skid steer, Michael jun7ped out and pulled out a gun and pointed it at them.
Michael told them that it was loaded and the safety was offf. Noah immediately moved to
11. push the gun away a.ud grabbed to put Michael in a headlock or bear hug and force him
down. They sturnbled across the sidewalk and ended up falling on the porch. Randall
grabbed Michael's hands, which were both on the gun, and never let go. Randall testified
that he forced the gun to point toward the sky so none of them would get hurt
accidentally. After the fall, Randall was on the porch with Michael and Noah was
kneeling beside tllein. Noah was between Michael and the door and window. "When
Noah lost his grip on Michael and he would not release the gun, Noah punched Michael's
forearins up to five times to get him to release the. gun. Noah denied ever kiclcing
Michael. Randall denied any lciclcing or stornping Michael because he had his hainds on
the gun the whole time. However, at the time he had told the deputy that he may have
lticlced or hit Michael because he was fighting for his life,
{¶ 281 Noah heard a gunshot and the window shatter, and then Michael released
the gun. Noah testified that no one fell into the window. Randall testified that he also heard a bang and the window brealc as Michael forced the gun toward Noah. Randall assumed that the gun had fired, Deputy Moser testified that the sound of a gunshot that
Cody Michael and the Snyders stated that they heard may have been caused by the popping sound caused by the brealcing of the seal of the double-pane window.
{T 291 Randall further testified that tlu•ee or four seconds af^:er the window broke, he took Michael's gun away and held it in his right hand pointed downward behind him.
He then asked Michael if his wife or kids were home, hoping that they had called 911.
Michael did not respond, so Randall told N`aah to cal1. Just then, Deputy Moser arrived
12. and told Randall to tlirow down the gun. Randall recognized Deputy Moser from
Randall's towing business which involved working with law enforcement agencies to tow
and impound cars.
{^ 30} Regarding their injuries, Randall testified that he had a four-inch gash in his
arm. He had blood running out of his ear. He was bleeding on his back from a cut, but
could not deterinine how he had been cut. Noah testified that he suffered a sinall cut that
stopped bleeding by the time the ambulance arrived. He confinned that his father had a
large gash and was bleeding badly. At trial, Randall Snyder testified that he is about 6
feet tall and weighs 230 pounds. Noah testified that he is 6 feet tall, weighs 250 pounds,
and has average strength.
{¶ 31} Michael testified that his upper front teeth were permanently damaged and
that he suffered severe bruising and lacerations. His neck and back were out of
alignment. The oracle on his eye bone was broken and his eye swelled shut. His nose
was broken in three places in a crushed mamzer. At the hospital, Michael had a CT scan
done, but he refused to have the nurse clean up his wounds because he wanted to
photograph thein himself first. Tlie medical report from the CT scan indicated only a
fractured nose, contusions, and abrasions. Michael testified that his medical expenses were approximately $15,000. At the time of trial, nearly seven months later, Michael asserted that he was still suffering frozn his injuries. He had been off work for six weeks and returned to work in a Iiinited capacity after that. Nancy 1\/iichael also testified that when she saw Michael he had numerous bruises, red marks, tacerations, a broken tooth. a
13. swollen eye, and his jaw appeared to be out of alignment. She testified that Michael was
un.cornfortable for tuto weeks afterward and missed six weeks of worlc, Noah Snyder
testified that after he heard about all of Michael's injuries, he went to wliere Michael was
working and took photographs of him scraping shingles off of a roof on June 20, about
one month after the incident. However, no photographs were admitted into evidence.
{¶ 32} The Michaels and VJehrle, the contractor who repaired the Michaels'
window, testified that the cost for the repair was $640.
{¶ 33} Randall Snyder also testified that after he wrote out his statement at the
sheriff s office, Deputy Moser took him to another room where he typed out the statement
and asked Randall questions. Afterward, the deputy presented a typed statement to
Randall, which he signed without reading it.
{¶ 34} In his first assignment of error, appellant argues that he was prejudiced by his trial counsel's violation of Rule 1.7(b) and (c) of the Rules of Professional Conduct.
Appellant contends that his counsel's representation of both appellant and his son/co- defendlnt violated this rule. At the beginning of trial, the trial court raised the issue of counsel representing both defendants. Appellant's counsel indicated that he would read the applicable law and evaluate again the statements made by the Snyders to the police.
Appellant contends that his counsel never discussed the issue. After a break, appellant's counsel asserted that there was no objection to the admission of the statements to the officer as to the issue of the guilt of each defer,dant. However, on appeal, appellant asserts that he never consented to this waiver of his rigllts.
r4. {¶ 35} The Ohio Supreme Court has held th:at an appellate court does not have
jurisdiction over the issue of whether a judge should have been disqualified even when it
is raised in the context of voiding or reversing the judgment of the trial court on appeal.
Beer v. Gr^iffith (1978), 54 Ohio St.2d 440, 441-442. Lilcewise, the appellate court does
not have jurisdiction over the issue of wliether an attorney violated the Rules of
Professional Conduct even when it is raised in the context of aii appeal. State v. L.F.
(May 24, 1996), 6t1i Dist. No. S-95-013, at 6, certiorari denied (1997), 520 U.S. 1233,
citing State v. Frazier (Feb. 17, 1994), 8t11 Dist. No. 62557, at 8. Appellant's first
assignment of en•or is not wel.l-talcen.
{¶ 36} In his second assigmnent of error, appellant argues that the adinission of dental records was plain error.
{¶ 37} During Michael's testimony, his dental records were admitted into evidence without objection. Failure to object to an error results in a forfeiture of the right to appeal the error, except that the appellate court aiay exercise its discretionary power to review plain error. Crim.R. 52(B) and State v. YYogenstahl (1996), 75 Ohio St.3d 344, 357, certiorari denied (1996), 519 U.S. 895. Plain errors are those errors that are clearly indicated in the record, apparent to the trial court, State v. Tichon (1995), 102 Ohio
App.3d 758, 767, and would have affected the outcome of the trial, Statev. Ghaddell
(1996), 75 Ohio St.3d 163, 166. The appellate court takes notice of plain error only in exceptional cases in order to prevent a manifest miscarriage of justice. State v. Phillips
15. (1995), 74 Ohio St.3d 72, 83, eertiorari deaiied (1996), 517 U.S. 1213, citing State v.
Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus.
{¶ 38} In this case, appellant argues on appeal that Michael's.dental records should
not have been adniitted into evidence because only a two-page record was provided
during cliscovery and a ten-page record was admitted into evidence. Furthermore,
appellant alleges that Michael did not properly authenticate the records and they are not
self-authenticating., Appellant did not, however, present any argument that the outcome
of his trial was affected by the alleged improper adinission of these records into evidence.
In light of the fact ehat there was a significant amount of other testimonial evidence to
establish that appellant caused serious harm to Michael, an element of felonious assault
defined in R.C. 2901.01(A)(5), we find that appellant has failed to establish that the
alleged error rises to the level of plain error. Appellant's second assigmnent of error is
not well-taken.
{¶ 39} In his thud assignrnent of error, appellant argues that, based upon the
defense evidence of self-defense, there was insufficient evidence to warrant submitting
his case to the jury and that his conviction of felonious assault is contrary to the manifest
weight of the evidence. Appellant moved for an acquittal pursuant to Crim.R. 29(A) only
as to the evidence to support the specification charge. There is case law hold'ulg that
appellant would have waived all but plain error regarding the sufficiency of the evidence to support his conviction for felonious assault. See State v. Roe (1989), 41 Ohio St.3d 18,
25. However, more recently, the Qhio Supreme Court has held that the entry of a not
16. guilty plea preserves the sufficiency of the evidence issue for appeal. State v. Jones
(2001), 91 Ohio St.3d 335, 346, certiorari denied (2001), 534 U.S. 1004; State v. Carter
(1992), 64 Ohio St3d 218, 223, certiorari denied (1993), 507 U.S. 938; State v. Coe, 153
Ohio App.3d 44, 2003-Ohio-2732, ¶ 19.
{T 40} A challenge to the sufficiency of the evidence is a question of law, State v.
Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52. The standard for determining
whetller there is sufficient evidence to support a conviction is whetlier the evidence
. admitted at trial, "if believed, would convince the average mind of defendant's guilt
beyond a reasonable doubt. The 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. Jenlcs
(199 1), 61 Ohio St.3d 259, paragraph two of the syllabus, citing Jaclcson v. Virginia
(1979), 443 U.S. 307. See, also, State v. Thon¢plcins, supra. Therefore, the verdict ,^vill
not be disturbed unless the appellate court finds that reasonable minds could not reach the
conclusion reached by the trier of fact. State v. Dennis, 79 Ohio St.3d 421, 430, 1997-
Ohio-372, certiorari denied (1998), 522 U.S. 1128. In determining whether the evidence is sufficient to support the conviction, the appellate court does not weigh the evidence nor assess the credibility of the v,ritnesses. State v. Gilallcer• (1978), 55 Ohio St.2d 208, 212, certiorari denied (1979), 441 U.S. 924, and State v. Willard (2001), 144 Ohio App.3d
767, 777-778.
17. {¶ 441} To meet its burden under R.C. 2903.1(A)(1), the prosecution was required
to prove that appellant caused Michael "serious pliysical harm," "Serious physical harm"
is defnied by R.C. 2901.01(A)(5) to include:
{¶ 42} "4' **(b) Ai.1y physical harm that carries a substantial risk of deatli; (c) Any
physical harzn that involves some permanent incapacity, whether partial or total, or that
involves some temporary, substantial incapacity; (d) Any physical harm that involves
some perinanent disfigureinent or that involves some temporary, serious disfigureinent;
(e) Airy physical harm that involves acute pain of such duration as to result in substantial
suffering or that involves any degree of prolonged or intractable pain."
{t 43} Upon a review of the evidence, we find that appellant has failed to
demonstrate that there was insufficient evidence to submit this case to the jury. Michael,
his wife, and the investigating officer testified regarding Michael's injuries. The hospital
medical records and photographs also evidence the extent of Michael's injuries. The
existence of evidence supporting an affinnative defense of self-defense does not affect a
determination ofwhether there was enough credible evidence upon which a reasonable jury could fmd the defendant guilty beyond a reasonable doubt. State v. Johr2ron, 10th
Dist. No. 06AP-878, 2007-Ohio-2792, ¶ 30, and State v. Cooper, 170 Ohio App. 3d 418,
2007-Ohio-11 86, $ 15.
1{1 44} Even when there is sufficient evidence to support the verdict, a court of appeals may decide that the verdict is against the weight of the evidence. State v.
Thomplci 2s, supra, at paragraph two of the syllabus. VJI7en weighing tlie evidence, the
18. court of appeals inust consider whetlier the evidence in a case is conflicting or where ....._.__._ ....,.T _. _^ ._...,...__ . ._...____ ...... _ ...... _., . . .--- reasonable minds niight differ as to the inferences to be drawn therefrom, but it cannot re-
determine the facts. State v, Smith (1997), 80 Ohio St.3d 89, 114, 1997-Ohio-355,
certiorari denied (1998), 523 U.S. 1125, The staidard for deterinining whether a
conviction is against the nianifest weight of the evidence is whether the appellate court
finds that the trier of fact clearly "lost its way and created such a manifest miscarriage of
justice that the conviction inust be reversed and a new trial ordered." In making this
deterinination, the court reviews the entire record, weighs the evidence and all reasonable
inferences therefrom, and considers the credibility of witnesses. State v. Snaith, supra,
and State v. Thompkins, supra, at 387.
{¶ 45} When determining whether the conviction was contrary to the maiiifest
weight of the evidence, appellant's self-defense evidence is taken into consideration. To
establish self-defense, appellant was required to demonstrate that: "(1) [he] was not at
fault in creating the situation giving rise to the affray; (2) that [he] had a bona fide belief
that he was in unminent danger of death or great bodily harm and that his only means of
escape from such danger was in the use of such force; and (3) that [he] did not violate any
duty to retreat or avoid the danger." State v. Barnes, 94 Ohio St.3d 21, 24, 2002-Ohio-
68, citing State v. Robbins (1979), 58 Ohio St.2d 74,.paragraph two of the syllabus.
Appellant asserts that he met his burden of proving his defense by a preponderance of the evidence and, therefore, the jury clearly lost its way when it found him guilty.
19. {¶ 461 We disagLee, Uiider a manifest weight analysis, the appellate court ,._..^.._ _._.._..M- ^...... , .^ ._...._. ^ _._ _._.. . _ .._._ _ _._.. _...... _ . _ _...... considers the weight of the evidence and the credibility of the witnesses to determine if
ttle jury lost its way in evaluating the evidence. We do not invade the providence of tlae
jury to weigh the evidence and make credibility deterininations. Conflicting evidence
was presented in this case. When all of the evidence is considered as a whole, we find
that the jury did not lose its way in evalnating the evidence. The jury simply found the
prosecution's evidence more credible. Therefore, we find that appellant's conviction was
not contrary to the manifest weight of the evidence.
{$ 47} Appellant's third assignnlent of error is not well-talcen.
{9148} In his fourth assigmnent of error, appellant argues that he was denied his
Sixth Amendment right under the United States Constitution to effective assistance of
counsel. Appellant asserts that his retained counsel failed to fulfill his duty to appellant
when he failed to object to the authenticity and admissibility of the dental records
evidence; violated the Rules of Professional Conduct by rapresenting both appellant and
his son; failed to present a material witness (tbe friend of appellant's son who had come
over that day to move the dirt pile); failed to present character witnesses; failed to present
an expert witness to refute d1e severity of the injuries; failed to object to the jury
instructions on complicity; and failed to zealously present the self-defense claim during
closing argument. Appellant fuither argues that the cumulative effect of all of these
failings resulted in prejudieial error.
20. {^( 49}..A:ppellant bears the burden of proving that his coun.sel was ineffective since . ^. __ .. _ .^ .__.._. ,.. ._. ....__. __._...... _ _^_...... _._ _ . ----.__. ,__^.^. _ _...._.,^ _ _..^_ an attorney is presumed cornpetent. Strickland v, Washington (1984), 466 U S, 668, 687-
689, and State v, Lott (1990), 51 Ohio St.3d 160, 174, certioraxi denied (1990), 498 U.S.
1017. To meet this burden of proof, appellant anust show that: (1) there was a substantial
violation of the attorney's duty to his client, and (2) the defense was prejudiced by the
attorney's actions or breach of duty. Strickland, supra, and State v, Snzith (1985), 17 Ohio
St.3d 98, 100. Prejudice is shown where there is a reasonable probability that a different
result would have occurred in the case if the attorney had not erred. State v. Bradley
(1989), 42 Ohio St.3d 136, paragraph three of the syllabus, certiorari denied (1990), 497
U.S. 1011, and State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, at ¶108, certiorari
denied (2003), 539 U.S. 907.
{¶ 50} While the reasonableness of the attorney's conduct inust be considered in
light of the facts of each case, some general rules have arisen froin case law. One general
rule is that reasoned tactical decisions cannot forn7 the basis for a claim of ineffective
assistance of counsel. State v. Hamblin (1988), 37 Ohio St.3d 153, 157, certiorari denied
(1988), 488 U.S. 975. Trial counsel does not have to use every piece of evidence they
have in their defense if they reasonably believe that it would harm their case. State v.
Post (1987), 32 Ohio St.3d 380, 388-389, certiorari denied (1988), 484 U.S. 1079.
Furthermore, when the clainis of ineffective assistance of counsel are based upon facts outside the appellate record, the issue must be raised in a petition for postconviction relief, not on appeal. State v. Hartman, 93 Ohio St.3d 274, 299, 2001-Ohio-1580.
21. {T 51} As to the issues raised in this case, we first find that the issue of hieffective
assistance based upon a violation of the Rules of Professional Conduct by representing
both appellant and his son is outside of our jurisdiction for the same reasons as stated
above under appellant's first assigntnent of error.
{¶ 52} Second, even if we agreed that the failure of appellant's counsel to object to
the authenticity and admissibility of the dental records evidence was substantial breach of
duty, we find that appellant's defense was not prejudiced by the breach of duty because
there is no reasonable probability of a different result in the case as discussed under
appellant's second assignment of error.
{^ 53} Third, as to appellant's claims of ineffective assistance based upon his
counsel's failure to present a material witness, character witnesses, and/or an expert
witness to refute the severity of the injuries, these are all tactical trial decisions that
cannot be second-guessed on appeal. Debatable trial tactics and strategies do not
constitute a denial of effective assistance of counsel. State v. Clayton (1980), 62 Ohio
St.2d 45, 49, certiorari denied (1980), 449 U.S. 879. Without additional evidence, we cannot find that appellant's counsel rendered ineffective assistance of counsel by the manner in which he conducted the defense,
{g 54} Fourth, as to the claim of'ineffective assistance based upon the failure to object to the jury instructions on complicity, appellant asserts that there was no evidence in the record that appellalt and his son approacl-ied Michael with a common purpose of committing a crime. We disagree. There was evidence indica.tiiig that t1-ie Sriyders went
21 onto 1Vlichael's property for revenge. Appellant has failed to establish that his counsel
breached a duty owed to appellant.
{^ 55} Finally, as to the claim of ineffective assistance based upon a failure to
zealously present the self-defense claim during closing argument, we find appellant's
argument laclts merit. Appellant's counsel did argue that appellant and his son actecl in
self-defense after finding themselves in a situation that they neither caused nor
anticipated.
{¶ 56} Appellant further argues that the cumulative effect of all of these failings
resulted in prejudicial error. Because we find that all of appellant's claims of ineffective
assistance laclc merit, this argument fails as well. Appellant's fourth assigrunent of error
is not well-talcen.
{$ 57} Having found that the trial court did not commit error prejudicial to
appellant, the judgment of the Williams County Court of Coinmon Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for
the clerlc's expense incurred in preparation of the record, fees allowed by law, and the fee
for filing tlie appeal is awarded to Williains County.
JUDGMENT AFFIRMED.
23 State v. Snyder
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, al,so, 6th Dist.Loc.App.R. 4.
Peter M. Handworlc. J. ^.9^,^-•^^^,
Marlc L. Pietrylcowski. J.
William J. Slcow, .P . J. CONCUR.
This decision is subject to fiutlier editing by the Suprame Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://w)Alw.scoiiet.state.oh.us/rod/neiA,pdf/?source=6,
24. q
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IN THE COURT OF COMMON PLEAS OF WILI„I^^MS COYIhTZYOZ-IIO ^^C ^:.': ••.. Y^ S tat.e of Ohio. Case No. 07 CR 0-70;^ ;?`; ,
PJaintiff, 51uNTENC'JLNG 3^OLTR11TIrP, ENT.RY
Vs.
Randail D. Snydez,
Defendant,
On January 22, 2008, this matter came on for sentencing. The defendant was
present in open Court, togetber wit.h counsel, John S. 9haffer. Present for the State was
Thomas A. Thompson, Williams County Prosecutor.
The defendant was then afforded all rights pursuant to Criminai Rule 32. The
Court considered the record, oral statements, any victim impact statement, and the pre-
sentence report prepared, as well as the principles and purposes of sentencing under Ohio
Revised Code §2929,11, and has balanced the seriousness and iecidivism factors, as
provided in Ohio Revised Code §2929.12. The Court finds that the defendant has been
convicted of the following:
Count 1, a violation of Qhio Revised Code §2909.11(A)(1), Felonious Assaalt, afelony of the second degree;
The Court fnr[trer finds that a prison terin is consistent with the purposes and
principles of sentencing in Ohio Revised Code §2929,11.
For the reasons stated on the recard, and afrer consideration of the factors under
Ohio Revised Code §2929.12, the C;ourt finds that a prison sentence is consistent with the
JOURNALSf-^-) PAGE ^ JOURNALIZEQ DATE12'' - bk l,
purposes of OhioRevised Code §2929.:11, and the defendant is notamenable to an
available community control sanction.
The Court e,hen addressed the defendant as follows:
Count I, a violation af Olno Revised Code §2903.11(A.)(l), Felonious Assaull, a felony of the secotid degree, you are sentenced to the Ohio Department of Rehabilitation and Correction for 4 years,
Defendant shall receive credit for ti.u.e served of FORTY-F1VH days as of
January 22,. 2008, plus future custody days while defendant awaits transpozl.ation to the
institution.
The Court thsn advised the defendant that post-release cont-rol is mandatnry with
the Ohio Parole'Boatd for"tlnee (^*j years;'v}iich conxmences upon defendant's release
front imprisonment. Defendant was notified that for violation of post-release control
conditions, the Adult Parole Authority m• Parole Board could impose a more restrictive or
longer control sanction or retarndefen'dant to prison for up to nine (9) months for each
violation up to a maximum of one-half (1/2) of the stated prison term.. If the violation of
post release control conditions is a new felony, the defendant may receive for the
violation a prison term of the greater of one (1) year or the time remaining on post-release
contral, which shaIl be served consecative to any other prison term imposed for the netiv
felony. The defendant is ordered to serve as part of this sentence any term of post-release
contxol imposed by the Parole Board, and any prison lerm for violation of tltat post-
release control.
Defendant is l-jereby ordered into the custody of the 'Williarns County S]xeriff for I delivery to CCNO forthwith. The C'leri< is ORDERED to issue a Warrant io Convey to n
the SheriffoflTJilliams County, Ohio, Bond, if any, including work relea.se privileges as
previously set, is hereby revohCd.
Authorities fro ,. the Coa'ections Center of Northrvest Ohio are ORDERED to
deliver ilxe deiendantzo the Ohio k)eparnnent of Rehabilitation and Corrention.
The Court finds thaf the defendant has the abilltv to pay the restitution imposed
herein with.preseni ear.niugs an.d assets.
Defendaut is QRDEF'^FvD to pay restitution in the amolmt of U2,527.44 to Quinn
T. Michael, all costs of prosecution, any courl-appointed counsel costs, and any
supen,ision fees permitted, pursuant to Ohio Revised Code §2929.18(A)(4).. Bond, if
any, to be returned less retainxge-as antlzofized by iaw.
The Clerk shall forward a file-stamped copy of this Journal Entry to the
P.rosecuting Attorney, to the Attorney for the Defendant, John S. Shaffer, the Bureau of
Sentence Computation, and-to the Adult Prohation Departrnent of Williarras County.
^ L. Roth, Judge
DOCUMCNT PREPAR.GD BY THI, WILLS_AMS COUNTY PROSCCUTID:G ATTORNEX'S OFFICE 2001DECfl P2:3b IN THE COURT OF COMNION PLEAS OF WILLIAMS CC&IA^Y^FOO^^ TS iYILLIAh9, COf11dTY State of Oiiio, Case No, 07 CR 070 OHIO
Plaintiff, JOURNAL ENTRY OF CONVICTION
vs.
Randall D. Snyder,
Defendant.
This matter came on for trial before a jury coinmencing on December 10, 2007 and
ending on December 12, 2007. The defendant was present for the duration of the trial with his
counsel John S. Shaffer. Present for tbe State of Ohio was Williams County Prosecutor Thomas
A. Thompson.
The jury was impaneled and swozn, evidence was adduced and the jury was charged.
Upon deliberation of the jury, it was the findings and verdicts of the said jury that the defendant
Randall D. Snyder is GUILTY of Count I, Felonious Assault, a second degree felony in
violation of Ohio Revised Code §2903.11(A)(1), NOT GUILTY of the firearm specification to
Count I and NOT GUILTY of Count iI, Vandalism, a fifth degree felony, in violation of Ohio
Revised Code §2909.05(A).
The Court orders a pre-sentence investigation report be prepared by the Adult Probation
Department.
Sentencing is scheduled for January 22, 2008 at 1:30 p.m. Bond is lierby revoked and the defendant is ordered held for sentencing.
JOURNAL 1-S-Vj PAGfe, '^ ^ /-;^ Jql^^iNALIGED DATE ^17-0 7 A file-stamped copy of this Journal Entiy shall be mailecl by the Clerlc of Courts to the
Prosecuting Attorney, the Adult Probation Department, and 7ohn S. Shaffer, attorney for the
defendant. ^^^^amQ L. Roth
Craig L. Roth, Judge
DOCUMENT PREPARED BY THE WILLIAMS COUNTY PROSECUTING ATTORNEY'S"OFFICE