[Cite as State v. Williams,
2016-Ohio-4945.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DAVID WILLIAMS, IV : Case No. 16-CA-01
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
2015 CR 608
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 12, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM T. CRAMER
Licking County Prosecutor 470 Olde Worthington Road, Suite 200
20 S. Second Street, Fourth Floor Westerville, Ohio 43082
Newark, Ohio 43055
Licking County, Case No. 16-CA-01 2
Baldwin, J.
{¶1} Appellant David Williams, IV, appeals a judgment of the Licking County
Common Pleas Court convicting him of aggravated robbery (R.C. 2911.01(A)(1), (3)),
felonious assault (R.C. 2903.11(A)(1),(2)) and possession of cocaine (R.C.
2925.11((A),(C)(4)(a)), with a repeat violent offender specification. Appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 20, 2014, Joe Messina, Sr. was paid $1,000.00 in cash for
performing a concrete job. Messina gave his son $200 to pay bills, and kept the other
$800 with him. Messina then went to a bar called Jugz, where he had two or three drinks,
paying for the drinks with the cash from the concrete job. Messina moved from Jugz to
the Dew Drop Inn, where he had a few more drinks. He had seven new $100 bills with
him, and some smaller bills.
{¶3} Messina saw appellant at a table alone. He had never met appellant, but
sat down and struck up a conversation. Messina started to leave the Dew Drop Inn after
about an hour, and appellant left at the same time. Because they were going in the same
direction, the pair walked together. As they approached Messina’s apartment, appellant
asked if he had anything cold to drink. Messina invited him to his apartment, where he
gave appellant a Four Loko drink from his refrigerator. Messina admitted that they also
had a hit of cocaine, which he had at the apartment.
{¶4} Messina fell asleep while appellant was still in the apartment. Messina was
awakened when he was stabbed in the neck. Appellant was on top of him, choking him
and jabbing him with a knife. Messina blocked the knife and pushed appellant off. He
Licking County, Case No. 16-CA-01 3
took the knife from appellant and stabbed appellant in the neck. Appellant went to the
kitchen, where he tried to get a knife out of a sheath. Messina ran for the stairs. Appellant
tackled Messina, breaking Messina’s ribs and his arm. Appellant landed on top of
Messina and started shaking him. During the struggle, appellant took Messina’s money.
Messina began pounding on the wall and yelling for help, and appellant fled.
{¶5} The next morning, Detective Timothy Fleming contacted appellant, who had
a cut on his neck and on his knuckle. When asked if he had anything in his pockets,
appellant turned out his pockets, revealing a small amount of cash and a crack pipe with
cocaine residue. Det. Fleming asked appellant to check his left rear pocket, and appellant
produced seven new $100 bills. Appellant made several inconsistent statements about
his whereabouts the night before, and was placed under arrest.
{¶6} Appellant was indicted by the Licking County Grand Jury with aggravated
robbery, felonious assault, and possession of cocaine. The aggravated robbery and
felonious assault charges included repeat violent offender specifications. Appellant was
found guilty after jury trial of aggravated robbery, felonious assault, and possession of
cocaine. The court thereafter found him to be a repeat violent offender. The court merged
the convictions of aggravated robbery and felonious assault, and the State elected to
have appellant sentenced for aggravated robbery. The court sentenced appellant to
eleven years incarceration for aggravated robbery and one year incarceration for
possession of cocaine, to run concurrently with each other but consecutively to the six
year sentence on the repeat violent offender specification, for an aggregate term of
seventeen years.
{¶7} Appellant assigns two errors to this Court on appeal:
Licking County, Case No. 16-CA-01 4
{¶8} “I. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT
HAD A DUTY TO RECONCILE EVIDENTIARY CONFLICTS ON THE THEORY THAT
EACH WITNESS TESTIFIED TO THE TRUTH AND THAT IT ONLY HAD TO EVALUATE
CREDIBILITY IF IT WAS UNABLE TO RECONCILE THE EVIDENCE.
{¶9} “II. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION,
ARTICLE I, SECTION 10, BY COUNSEL’S FAILURE TO OBJECT TO ERRONEOUS
JURY INSTRUCTIONS.”
I.
{¶10} In his first assignment of error, appellant argues that the court erred by
instructing the jury that it had a duty to reconcile evidentiary conflicts on the theory that
each witness testified to the truth, and that it only had to evaluate credibility if it was unable
to reconcile the evidence.
{¶11} Appellant concedes that he failed to object to this instruction as required by
Crim. R. 30(A), and we therefore must find plain error to reverse. In order to prevail under
a plain error analysis, appellant bears the burden of demonstrating that the outcome of
the trial clearly would have been different but for the error. State v. Long, 53 Ohio St.2d
91,
372 N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id. at paragraph three of the syllabus.
{¶12} Appellant challenges the following instruction, which the court gave during
its preliminary instructions to the jury:
Licking County, Case No. 16-CA-01 5
If there are any conflicts in the evidence, it is your duty to reconcile
the conflicts if you can on the theory that each witness has testified to the
truth. If you cannot so reconcile the testimony, then it is within your province
to determine whom you will believe and whom you will disbelieve.
{¶13} Tr. I, 128.
{¶14} Appellant relies on Cupp v. Naughten, 414 U.S. 141,
94 S.Ct. 396,
38
L.Ed.2d 368 (1973), in which the challenged instruction read:
Every witness is presumed to speak the truth. This presumption may
be overcome by the manner in which the witness testifies, by the nature of
his or her testimony, by evidence affecting his or her character, interest, or
motives, by contradictory evidence, or by a presumption.
{¶15} Id. at 142.
{¶16} The United States Supreme Court found no constitutional violation in this
instruction while recognizing that many federal courts of appeals had expressed
disapproval of the instruction. The Supreme Court found that because the jury was
instructed about the presumption of innocence and the state’s duty to prove guilt beyond
a reasonable doubt, any “tangential undercutting” of these propositions that may have
theoretically resulted from the challenged instruction was not of constitutional dimension.
Id. at 149.
{¶17} Appellant also relies on United States v. LaRiche, 549 F.2d 1088 (6th Cir.
1977), in which the challenged instruction read:
Every witness is presumed to speak the truth; however, if you find
the presumption of truthfulness to be outweighed as to any witness, you will
Licking County, Case No. 16-CA-01 6
give the testimony of that witness such credibility, if any, as you may think
it deserves.
{¶18} Id. at 1093.
{¶19} In finding no plain error in the giving of the instruction, the court concluded
that the trial court’s instruction on factors which would tend to discredit the testimony of
witnesses vitiated what might otherwise have been plain error. Id. at 1094.
{¶20} The State cites to United States v. Hyman, 741 F.2d 906 (7th Cir. 1984), in
which the challenged instruction was similar to that in the case at bar:
If there are conflicts in the evidence, it is your duty to reconcile the
conflicts, if you can, on the theory that each witness has testified to the truth.
If you cannot so reconcile the testimony, then it is within your province to
determine whom you will believe and whom you will disbelieve. You should
weigh the evidence and give credit to the testimony in light of your own
experience and observations in the ordinary affairs of life.
{¶21} Id. at 909.
{¶22} In rejecting appellant’s claim that the instruction was error, the court
concluded that this instruction was not a “presumption of truth” instruction that had met
with disapproval in several federal circuits. Id. at 910. Rather, the jury was told that if
there were irreconcilable conflicts in the evidence, then it was up to the jury to decide who
to believe.
Id. Therefore, the instruction left the determination of witness credibility to the
jury, and there was no “presumption of truthfulness” charge to the jury.
Id.
Licking County, Case No. 16-CA-01 7
{¶23} As in Hyman, the challenged instruction did not constitute a presumption of
truthfulness instruction. Rather, the instruction left the determination of witness credibility
to the jury.
{¶24} Further, viewing the instruction in light of the entire charge to the jury, it is
clear that the jury was properly instructed on the burden of proof, the presumption of
innocence, and the manner in which to determine credibility of witnesses. The court
charged the jury in preliminary instructions:
The law does not, however, require you to accept all the evidence I
shall admit even though it may be competent. In determining what evidence
you will accept, you must make your own evaluation of the testimony given
by each of the witnesses and determine the degree of weight you choose
to give to that witness’ testimony.
The testimony of a witness may fail to conform to the facts as they
occurred because that witness is intentionally telling you a falsehood, or
perhaps because they did not accurately see or hear those things about
which they have testified. Perhaps their recollection of the events is poor
or perhaps they have not expressed themselves clearly in giving their
testimony.
There is no magical formula by which a person evaluates testimony.
You bring with you into this courtroom today all of the background and
experience of your lives. In your everyday affairs you determine for
yourselves the reliability or unreliability of statements that are made to you
by other people. Those same tests that you use in your everyday dealings
Licking County, Case No. 16-CA-01 8
are the same tests that you would apply here today as well as in your
deliberations. They may consist of the interest or lack of interest of any
witness in the outcome of the case; the bias or prejudice of a witness, if any;
the age; the appearance; the manner in which the witness gives their
testimony here on the witness stand; the opportunity that the witness had
to observe the facts about which they are testifying; the probability or
improbability of the witness' testimony when viewed in light of all the other
evidence in the case. All of these are items to be taken into your
consideration in determining the weight, if any, you'll assign to that witness'
testimony.
If there are any conflicts in the evidence, it is your duty to reconcile
the conflicts if you can on the theory that each witness has testified to the
truth. If you cannot so reconcile the testimony, then it is within your province
to determine whom you will believe and whom you will disbelieve.
Reasonable doubt is present when the jurors, after they have
carefully considered and compared all the evidence, cannot say they are
firmly convinced of the truth of the charge. It is a doubt based on reason
and common sense. Reasonable doubt is not mere possible doubt, because
everything relating to human affairs or depending upon moral evidence is
open to some possible or imaginary doubt. Proof beyond a reasonable
doubt is proof of such character that an ordinary person would be willing to
rely and act upon it in the most important of his own affairs.
{¶25} Tr. I, 126-28, (challenged instruction in italics.)
Licking County, Case No. 16-CA-01 9
{¶26} In closing instructions, the court charged the jury:
As I stated to you in my preliminary instructions, you are the sole
judges of the facts, of the credibility of the witnesses, and the weight of the
evidence. To weigh the evidence, you should consider the credibility of all
the witnesses, and to do this you'll apply the tests of truthfulness which you
probably apply in your daily lives. These tests may include: the appearance
of each witness on the witness stand; their manner of testifying; the
reasonableness of their testimony; the opportunity that the witness had to
see, hear and know the things concerning which they testified; the accuracy
of memory; frankness or lack of it; along with the intelligence, interest and
bias, if any, together with all the facts and circumstances surrounding the
testimony. Applying these tests, you would assign to the testimony of each
witness such weight as you deem proper.
You are not required to believe the testimony of any witness simply
because the witness has been placed under oath. You may believe or
disbelieve all or any part of the testimony of any witness. It is within your
province to determine what testimony is worthy of belief and what testimony
is not worthy of belief.
{¶27} Tr. III, 551-52.
{¶28} The jury was correctly and completely charged on their responsibility to
determine the credibility of witnesses. Although the challenged instruction may have
constituted a permissive inference about the truthfulness of witnesses, the final
instructions to the jury given immediately prior to their deliberations made it clear to the
Licking County, Case No. 16-CA-01 10
jury that they were not required to believe the testimony of any witness just because they
were under oath.
{¶29} The first assignment of error is overruled.
II.
{¶30} In his second assignment of error, appellant argues that counsel was
ineffective for failing to object to the jury instruction he challenges as plain error in his first
assignment of error.
{¶31} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153,
524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674(1984); State v. Bradley ,
42 Ohio St.3d 136,
538 N.E.2d
373 (1989). In other words, appellant must show that counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied upon as
having produced a just result.
Id.
{¶32} As discussed in our resolution of assignment of error one, there was no
error in the jury instruction. Therefore, counsel was not ineffective for failing to object.
{¶33} The second assignment of error is overruled.
Licking County, Case No. 16-CA-01 11
{¶34} The judgment of the Licking County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J.
Farmer, P.J. and
Wise, J. concur.
