[Cite as State v. Lanier,
2021-Ohio-379.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109589
v. :
ANTHONY LANIER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 11, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-644426-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton, Assistant Prosecuting
Attorney, for appellee.
Ruth R. Fishbein-Cohen, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Anthony Lanier, appeals his convictions for
domestic violence and aggravated theft. Finding no merit to the appeal, we affirm.
In 2019, Lanier was named in a two-count indictment charging him
with domestic violence, in violation of R.C. 2919.25(A), a fourth-degree felony, and
aggravated theft, in violation of R.C. 2913.02(A)(1), a fifth-degree felony. Lanier
waived his right to a jury, and the following evidence was considered during a bench
trial.
On August 26, 2019, Michelle Kelly, a CMHA radio dispatcher, received
a 911 call from an unidentified caller stating that “this man is beating a lady.” (Tr.
26.) The 911 call was played for the court. The female caller stated that she was the
victim’s neighbor but did not want to be identified. Kelly testified that she notified
CMHA officers who then responded to the scene.
Officer Noelle Roberts testified that she arrived on scene and found the
victim, Ashanay Jones, with visible swelling to the right side of her face. Officer
Roberts stated that the identified male suspect was no longer on scene, but that
photographs were taken of the victim’s face.
Jones testified that she was texting on her cell phone and laughing while
doing so. She stated that Lanier, who is the father of her child, grabbed her phone
away from her and as she tried to get it back, Lanier punched her in the face, causing
her to fall onto the floor. Jones testified that she saw Lanier leave her apartment
carrying his clothes in a tote. She stated that she also saw Lanier take the license
plate tags off her car, but as he ran away, the tags fell out of the tote and onto the
ground.
On cross-examination, Jones admitted that she was currently in county
jail on felonious assault charges. When questioned about whether she told the police
that she did not want to “prosecute Lanier,” she responded, “I’m not sure about
that.” (Tr. 72.)
Lanier testified in his defense, denying that he was at Jones’s apartment
that evening or that he punched her. He stated that they have a tumultuous
relationship and that on prior occasions she assaulted and stabbed him with a knife.
The trial court found Lanier guilty of both offenses and sentenced him
to one year of community control at a community-based correctional facility.
Lanier appeals, raising two assignments of error.
I. Effective Assistance of Counsel
On the day of trial during the morning session, Lanier expressed his
dissatisfaction with his counsel for not obtaining the victim’s phone calls in which
she allegedly stated that “she never put these charges on me. Like she never did
this.” (Tr. 15.) He reiterated that he asked his attorney to obtain the phone calls in
which the victim allegedly told him “that [Lanier] never committed these crimes.”
(Tr. 17.) In response, the state advised the court that it had provided defense counsel
with a disc containing all of the victim’s recorded phone calls, which defense counsel
confirmed. When Lanier told the court that “[counsel] never told me that,” defense
counsel responded, “I just haven’t seen them yet.” (Tr. 18.)
In his first assignment of error, Lanier contends that he was denied his
right to effective assistance of counsel because his counsel did not review the victim’s
recorded phone calls prior to trial.
To establish ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable representation, and that he was prejudiced by that performance. State
v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084,
854 N.E.2d 1038, ¶ 205, citing
Strickland v. Washington,
466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
Prejudice is established when the defendant demonstrates “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceedings would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Strickland at 694. The failure to prove
either prong of the Strickland two-part test makes it unnecessary for a court to
consider the other prong. State v. Madrigal,
87 Ohio St.3d 378, 388-389,
721
N.E.2d 52 (2000), citing
Strickland at 697.
In evaluating a claim of ineffective assistance of counsel, a court must
be mindful that there are countless ways for an attorney to provide effective
assistance in a given case, and it must give great deference to counsel’s performance.
Id. at 689. Trial tactics and strategies do not constitute a denial of effective
assistance of counsel. State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-
2371, ¶ 38, citing State v. Clayton,
62 Ohio St.2d 45,
402 N.E.2d 1189 (1980).
In this case, the victim’s recorded phone calls are not part of the
appellate record. Accordingly, it is difficult for this court to determine whether the
phone calls contain any exonerating or impeaching evidence.
Moreover, there is no evidence in the record that counsel did not in
fact review the recordings prior to trial. Although counsel indicated during the
morning session of court that he had not “seen them yet,” the record reflects that
trial began in the afternoon session. Accordingly, counsel could have reviewed the
recordings during the break. The record supports this conclusion because during
cross-examination, counsel questioned the victim about whether she told police that
she did not want to prosecute Lanier. This line of questioning is consistent with
Lanier’s assertions that during his phone calls with the victim, she indicated that
“she did not put the charges” on Lanier.
Finally, counsel’s decision to not play the recordings or question her
any further about the recorded calls could have been a matter of strategy because
the recordings could have also contained information that was detrimental to
Lanier’s defense. Counsel’s use of the recordings as a prior inconsistent statement
would have allowed the state to use the recordings in their entirety. See Evid.R. 613.
Counsel’s trial strategies will not be second-guessed by a reviewing court. State v.
Adams, 103 Ohio St.3d 508,
2004-Ohio-5845,
817 N.E.2d 29, ¶ 30.
Accordingly, Lanier has not demonstrated that counsel’s performance
fell below an objective standard of reasonable representation. Finding that the first
prong of Strickland has not been satisfied, we need not address the second factor
regarding prejudice. Accordingly, the first assignment of error is overruled.
II. Manifest Weight of the Evidence
Lanier contends in his second assignment of error that his convictions
are against the manifest weight of the evidence.
The Supreme Court of Ohio has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ …, declaring that ‘manifest weight’ and ‘legal sufficiency’
are ‘both quantitatively and qualitatively different.’” Eastley v. Volkman, 132 Ohio
St.3d 328,
2012-Ohio-2179,
972 N.E.2d 517, ¶ 10, quoting State v. Thompkins,
78
Ohio St.3d 380,
678 N.E.2d 541 (1997), paragraph two of the syllabus.
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. … Weight is not a question of mathematics, but depends on its
effect in inducing belief.” Eastley at ¶ 12, quoting Thompkins at 387. In a manifest
weight analysis, this court sits as a “thirteenth juror,” and reviews “‘the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” Thompkins at
id., quoting
State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). The
discretionary power to grant a new trial should be exercised only in exceptional cases
where the evidence weighs heavily against the conviction.
Thompkins at 386.
Lanier contends that his convictions are against the manifest weight
of the evidence because he denied assaulting the victim or causing her injury, and
the victim’s testimony was incredible. He essentially argues this is a case of “he said,
she said,” and that it was error to believe the victim.
“If a case amounts to a ‘he said, she said’ dispute, [this court] will not
second-guess the trier of fact’s resolution of that dispute where the defendant has
not set forth any corroborating evidence as to why this court should disrupt that
[resolution], other than reiterating to us what ‘he said.’” State v. Taylor, 9th Dist.
Lorain No. 15CA010779, 2016-Ohio-2765, ¶ 14, quoting State v. Martinez, 9th Dist.
Summit No. 24037,
2008-Ohio-4845, ¶ 17.
Lanier has not directed this court to any evidence that would
undermine the trial court’s decision and demonstrate that the court lost its way in
finding him guilty. The trial court heard evidence that the police arrived on scene
following a 911 call where the caller said that she could hear a man assaulting a
female. Upon arrival, they found the victim with a visibly swollen face. The victim
testified that Lanier caused her injuries.
The trial court then heard testimony from Lanier, who denied being
at the victim’s residence or assaulting her. He stated that he was with someone else
that evening. Despite this testimony, Lanier did not file a notice of alibi or call any
witnesses who corroborated his defense.
Accordingly, based on our review of the testimony and evidence, we
find that this case is not the exceptional case where the evidence weighs heavily
against conviction and a new trial must be ordered. Lanier’s second assignment of
error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
