[Cite as State v. Douglas,
2025-Ohio-2635.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NOS. 2024-T-0099
CITY OF WARREN, 2024-T-0100
2024-T-0101
Plaintiff-Appellee,
Criminal Appeals from the
- vs - Warren Municipal Court
DESEMEN D. DOUGLAS,
Trial Court Nos. 2024 CRB 001544
Defendant-Appellant. 2024 CRB 001545
2024 CRB 001546
OPINION AND JUDGMENT ENTRY
Decided: July 28, 2025
Judgment: Affirmed
Enzo Cantalamessa, Warren City Law Director, and Cheryl Zebrasky, Assistant
Prosecutor, 141 South Street, S.E., Warren, OH 44481 (For Plaintiff-Appellee).
John P. Laczko, John P. Laczko, LLC, City Centre One, Suite 975, 100 East Federal
Street, Youngstown, OH 44503 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Desemen D. Douglas, appeals his three convictions for Domestic
Violence, first-degree misdemeanors, following a bench trial in the Warren Municipal
Court.
{¶2} Appellant raises two assignments of error, arguing (1) the guilty verdicts
were against the manifest weight of the evidence; and (2) he received ineffective
assistance of trial counsel.
{¶3} Having reviewed the record and applicable law, we find Appellant’s
assignments of error to be without merit. First, the guilty verdicts were not against the
manifest weight of the evidence. Appellant challenges the trial court’s determination that
the three victims’ testimony was credible; however, there is no basis upon which to disturb
that determination. Second, Appellant has not established ineffective assistance of trial
counsel. There is nothing in the record that affirmatively demonstrates that trial counsel
failed to meet with Appellant. Counsel’s other alleged deficiencies involved matters of
trial strategy.
{¶4} Therefore, we affirm the judgments of the Warren Municipal Court.
Substantive and Procedural History
{¶5} This case involves Appellant’s convictions for Domestic Violence against
three of his family members: his estranged wife, Natasha Wilbert (“Ms. Wilbert”); his 15-
year-old daughter, N.D.; and his 20-year-old daughter, Zyrah Douglas (“Zyrah”).
{¶6} Appellant and Ms. Wilbert have been married for nine years and have five
children; however, they have not lived together for the past five to six years.
{¶7} On the evening of Friday, August 30, 2024, Appellant was watching the
three youngest children at his apartment in Warren, Ohio. The two older children, N.D.
and Zyrah, were at a high school football game. Ms. Wilbert planned to pick up her
daughters from the game and drive to Appellant’s apartment to drop off a tablet for her
seven-year-old son.
{¶8} At the game, N.D.’s friend approached her and said Appellant had told her
that the family “kicked” him out and were being “disrespectful.” When Ms. Wilbert arrived,
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N.D. told her about this encounter. Ms. Wilbert became upset that Appellant had shared
personal information and planned to ask him about it.
{¶9} Ms. Wilbert and her daughters arrived at Appellant’s apartment. While
inside, Ms. Wilbert confronted Appellant about sharing personal information with N.D.’s
friend. The couple began arguing, and the argument became heated. Appellant shoved
Ms. Wilbert, at which time N.D. and Zyrah got involved. Ultimately, Ms. Wilbert, N.D., and
Zyrah began physically fighting with Appellant, which continued outside the apartment.
According to Ms. Wilbert, Appellant punched her in the eye and on the lip. According to
N.D., Appellant punched her several times in the chest, arms, and face. According to
Zyrah, Appellant banged her head against the apartment building.
{¶10} The fighting stopped, and N.D. called the police. The police arrived,
questioned the parties, and arrested Appellant. None of the victims sought medical
attention.
{¶11} On Monday, September 2, 2024, the police filed three criminal complaints
in the Warren Municipal Court charging Appellant with Domestic Violence, first-degree
misdemeanors in violation of Warren Cod.Ord. 537.14. The complaints alleged that
Appellant “did knowingly cause or attempt to cause physical harm to” each of the three
victims, who are “family or household member[s].”
{¶12} On September 3, 2024, Appellant was arraigned, pleaded not guilty, and
was appointed counsel. Appellant was released on a personal recognizance bond that
prohibited him from contacting the victims.
{¶13} On September 12, 2024, the trial court held a pretrial. On October 3, 2024,
the court held a second pretrial. The trial court granted the State’s motion to revoke
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Appellant’s bond for texting the victims and attempting to communicate with one of them
during the hearing.
{¶14} On October 10, 2024, the trial court held a final pretrial. The trial court
overruled Appellant’s motion to reinstate his bond.
{¶15} On October 24, 2024, the parties appeared for trial. Ms. Wilbert had to
leave court due to childcare issues. Over Appellant’s objection, the trial court continued
the trial until October 28.
{¶16} On October 28, 2024, the case was tried to the bench. The State presented
testimony from Ms. Wilbert, N.D., and Zyrah. The defense did not present witness
testimony or any evidence other than defense counsel’s cross-examination of the victims.
{¶17} The trial court found Appellant guilty of all three charges of Domestic
Violence. The trial court sentenced Appellant to 180 days in jail on each count, to be
served consecutively, with 90 days suspended and 28 days of jail time credit; five years
of probation to include an assessment for anger management, a batterer’s intervention
program, and no contact with N.D. and Zyrah; and a $25 fine for each charge and court
costs. On the same date, the trial court filed Appellant’s three judgments of conviction.
{¶18} On November 27, 2024, Appellant timely and separately appealed each
judgment of conviction. This Court sua sponte consolidated Appellant’s appeals for all
purposes. Appellant raises two assignments of error. Appellee did not file an answer
brief.
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Manifest Weight of the Evidence
{¶19} Appellant’s first assignment of error states: “The trial court denied Appellant
Due Process under the Fourteenth Amendment due to the fact his convictions for
domestic violence were against the manifest weight of the evidence and the trial court
judge’s findings of guilty were inconsistent with the evidence and testimony presented at
trial.”
{¶20} “[W]eight of the evidence addresses the evidence’s effect of inducing
belief.” State v. Wilson, 2007-Ohio-2202, ¶ 25. “In other words, a reviewing court asks
whose evidence is more persuasive—the state’s or the defendant’s?”
Id. “‘The court,
reviewing 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.’” State v. Thompkins, 1997-
Ohio-52, ¶ 25, quoting State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist. 1983). “When
a court of appeals reverses a judgment of a trial court on the basis that the verdict is
against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.”
Id., quoting Tibbs
v. Florida,
457 U.S. 31, 42 (1982). “‘The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.’”
Id., quoting
Martin at 175.1
1. While Appellant also quotes caselaw involving the sufficiency of the evidence, his specific arguments
involve manifest weight. Therefore, we will not separately address the evidence’s sufficiency.
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{¶21} Appellant argues that the verdicts were against the manifest weight of the
evidence because the testimony of the three victims was “varying,” “contradicted,” and
“unreliable.”
{¶22} Appellant’s argument involves the victims’ credibility. The Supreme Court
of Ohio has held that “[t]he choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact[,] and an appellate court may not substitute
its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123
(1986). This is because “‘the trial judge is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.’” Davis v. Flickinger,
1997-Ohio-260, ¶ 14,
quoting Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 80 (1984). Therefore,
“‘[a] reviewing court should not reverse a decision simply because it holds a different
opinion concerning the credibility of the witnesses and evidence submitted before the trial
court. A finding of an error in law is a legitimate ground for reversal, but a difference of
opinion on credibility of witnesses and evidence is not. The determination of credibility of
testimony and evidence must not be encroached upon by a reviewing tribunal . . . .’”
Id.,
quoting Seasons Coal Co. at 81.
{¶23} The trial court, in rendering its verdicts, explicitly addressed the
inconsistencies in the victims’ testimony, stating in relevant part:
I do want to point out some things with regard to inconsistency. The
inconsistencies I do not believe went to the elements of the matter. The
inconsistencies fell specifically, I think, with regard to who walked up to the
house and at what time and when they walked up to the house. I don’t
believe that’s something that destroyed or even diminished the credibility of
the individuals.
...
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I believe that, based on the testimony that was presented regarding in
specifically attempting or causing physical harm, I believe that that was
established.
{¶24} In other words, the trial court determined that despite some irrelevant
inconsistencies, the victims’ testimony credibly established the elements of Domestic
Violence. Upon review, we see no basis upon which to disturb the trial court’s credibility
determination.
{¶25} Appellant next argues that the victims’ injuries were “never substantiated by
medical treatment records or photographs.” The trial court also explicitly addressed this
argument, stating in relevant part: “Now, I know that there was some reference to medical
records. And while medical records can certainly corroborate information and provide
additional evidence, it’s not required.”
{¶26} The trial court’s statement is legally correct. This Court has held that a
victim’s testimony alone can prove domestic violence. State v. Puchowicz, 2024-Ohio-
5766, ¶ 27 (11th Dist.); e.g., State v. Mansour, 2011-Ohio-5438, ¶ 23 (11th Dist.); State
v. Warfield,
2003-Ohio-2366, ¶ 11 (11th Dist.). For instance, in Mansour, this Court stated
that “[t]he testimony of a victim that she was injured is sufficient to support a domestic
violence conviction, even when a victim ‘failed to seek medical treatment, nobody saw
[her] injury, and no photographs were taken of her [injury].’” Id. at ¶ 27, quoting State v.
Summers,
2003-Ohio-5866, ¶ 31 (11th Dist.).
{¶27} In sum, the guilty verdicts were not against the manifest weight of the
evidence. Accordingly, Appellant’s first assignment of error is without merit.
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Ineffective Assistance of Counsel
{¶28} Appellant’s second assignment of error states: “Appellant contends he
received ineffective assistance of counsel throughout pretrial proceedings, bench trial and
at the sentencing hearing in the instant matter in violation of his Sixth and Fourteenth
Amendment rights as well as his rights under Section 10, Article I of the Ohio
Constitution.”
{¶29} “A convicted defendant’s claim that counsel’s assistance was so defective
as to require reversal of a conviction . . . has two components. First, the defendant must
show that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Second, the defendant must show that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”
Id. Specifically, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. at 694. “The standard
under the Ohio Constitution is ‘essentially the same as the one enunciated by the United
States Supreme Court in Strickland.’” State v. Worley,
2021-Ohio-2207, ¶ 95, quoting
State v. Bradley,
42 Ohio St.3d 136, 142 (1989).
{¶30} Appellant argues that his trial counsel was ineffective because she failed to
meet with him to prepare for trial. According to Appellant, this is “quite evident” from the
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fact that counsel did not offer his “rebuttal testimony,” “put forth” a defense, or present
witness testimony or other evidence besides “meager” cross-examination.
{¶31} There is nothing in the record that affirmatively demonstrates that trial
counsel failed to meet with Appellant. In addition, while Appellant did not testify at trial,
he does not contend that counsel precluded him from doing so. This Court has
recognized that a criminal defendant’s decision to testify is ultimately his or her decision,
not defense counsel’s. State v. McCaleb, 2004-Ohio-5940, ¶ 94 (11th Dist.). However,
Appellant “cannot base his claim of ineffective assistance of counsel upon his
acquiescence to defense counsel’s advice to not testify.” Id. at ¶ 95.
{¶32} Further, while trial counsel did not present testimony or evidence other than
cross-examination, those are matters of trial strategy. See State v. Beesler, 2003-Ohio-
2815, ¶ 13 (11th Dist.) (“[t]he decision to call witnesses is within the province of counsel’s
trial tactics); State v. Wolf, 1997 WL 374307, *5 (11th Dist. Jan. 31, 1997) (“[c]ounsel’s
decisions on what evidence to present and how to present the defense constitute trial
strategy”); State v. Stroud,
2023-Ohio-569, ¶ 50 (11th Dist.) (counsel’s decision to cross-
examine a witness and the extent of such cross-examination are tactical matters).
“‘Debatable strategic and tactical decisions may not form the basis of a claim for
ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had
been available.’”
Id., quoting State v. Conley,
2015-Ohio-2553, ¶ 56 (2d Dist.).
{¶33} Appellant next argues that his trial counsel was ineffective for failing to make
a Crim.R. 29 motion for acquittal. Crim.R. 29(A) provides, in relevant part, that “[t]he
court on motion of a defendant or on its own motion, after the evidence on either side is
closed, shall order the entry of a judgment of acquittal of one or more offenses charged
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in the indictment, information, or complaint, if the evidence is insufficient to sustain a
conviction of such offense or offenses.” Thus, a Crim.R. 29 motion challenges the
sufficiency of the evidence. Stroud at ¶ 28.
{¶34} Trial counsel’s failure to make a Crim.R. 29 motion for acquittal is not
ineffective where such a motion would have been fruitless. Id. Here, Appellant was
convicted of Domestic Violence in violation of Warren Cod.Ord. 537.14(a), which
provides, “No person shall knowingly cause or attempt to cause physical harm to a family
or household member.” Appellant has not asserted or explained how a Crim.R. 29 motion
would have been successful, nor has he argued on appeal that the State’s evidence, if
believed, was legally insufficient to establish one or more elements. Instead, as
discussed above, Appellant challenges the victims’ credibility, which involves the manifest
weight of the evidence.
{¶35} In sum, Appellant has not established ineffective assistance of trial counsel.
Accordingly, Appellant’s second assignment of error is without merit.
{¶36} For the foregoing reasons, the judgments of the Warren Municipal Court are
affirmed.
ROBERT J. PATTON, P.J.,
MATT LYNCH, J.,
concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this court, Appellant’s assignments of error
are without merit. It is the judgment and order of this court that the judgments of the
Warren Municipal Court are affirmed.
Costs to be taxed against Appellant.
JUDGE JOHN J. EKLUND
PRESIDING JUDGE ROBERT J. PATTON,
concurs
JUDGE MATT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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