State v. Patterson

[Cite as State v. Patterson, 2017-Ohio-8318.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 105265

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ENNIS R. PATTERSON

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CR-16-606673-A

BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: October 26, 2017

ATTORNEY FOR APPELLANT

James J. Hofelich

614 W. Superior Avenue, Suite 1310

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley

Cuyahoga County Prosecutor

BY: Ronni Ducoff

Ashley B. Kilbane

Assistant County Prosecutors

Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

MARY J. BOYLE, J.:

{¶1} The defendant-appellant, Ennis Patterson, appeals his convictions. He

raises two assignments of error for our review:

1. Appellant’s convictions were against the manifest weight of the

evidence.

2. Appellant was denied his right to effective assistance of counsel.

{¶2} Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

{¶3} The Cuyahoga County Grand Jury indicted Patterson for one count of gross

sexual imposition, with a sexually violent predator specification, and one count of

kidnapping, with a sexual motivation specification and a sexually violent predator

specification. Police arrested Patterson on May 26, 2016, following a report that he

molested an eight-year-old child, D.D., while babysitting him on April 16, 2016.

Patterson pleaded not guilty to both counts and elected for a bench trial, where the

following evidence was presented.

{¶4} On May 25, 2016, D.N. was babysitting B.T.’s and Z.T.’s children at B.T.’s

house. D.N. testified that, as he was cooking dinner, he overheard D.D., one of B.T.’s

children, discussing sexually explicit things with another child. Alarmed, D.N.

demanded to know what D.D. was talking about. D.D. told D.N. that Patterson had

touched his private parts while babysitting D.D., C.J., and a number of other children at

B.T.’s house on April 16, 2016.

{¶5} D.N. testified that he immediately tried calling D.D.’s grandmother, C.T.,

who actually showed up at the house a few moments later. After D.N. told C.T. what

D.D. said, C.T. testified that she spoke to D.D., who repeated the story he told to D.N.

Becoming extremely upset, C.T. walked over to Patterson’s mother’s house, where

Patterson was staying. After having her knocks go unanswered, C.T. testified that she

called B.T. and Z.T., telling them to come to B.T.’s house immediately.

{¶6} C.T. testified that while she and D.N. waited for B.T. and Z.T. to arrive, she

called and spoke to M.S., her cousin, on the phone asking her to come to the house.

Around the same time, B.T.’s cousin, M.J., happened to stop by the house, during which

time she also spoke to D.D. and learned about the allegations against Patterson.

{¶7} Once B.T. and Z.T. arrived and learned what was going on, Z.T. spoke to

D.D. and became enraged. Z.T. and C.T. testified that the adults discussed whether to

call the police or go get Patterson themselves. C.T. testified that amidst this discussion,

she independently decided to call the police.

{¶8} C.T. testified that the first police department she was able to successfully

contact was the Cleveland Metropolitan Housing Authority (“CMHA”). Dispatched to

the scene for a report of unattended children, CMHA Officer Dustin Kubiak testified that

he arrived to discover that the report actually concerned a sexual offense against a child.

Following protocol, Officer Kubiak alerted the Cleveland Police Department (“CPD”),

which handles sexual offenses. While waiting for the CPD to arrive, Officer Kubiak

testified that he spoke with C.T. and one of the aunts on scene and, based on those

conversations, went across the street to Patterson’s mother’s house and requested that

Patterson come outside. While Officer Kubiak detained Patterson and escorted him to

his patrol car, C.T. testified that Patterson looked at her and said, “I told them to tell those

kids to leave me alone.”

{¶9} Eventually, CPD arrived on the scene, took statements from most of the

adults present, and placed Patterson under arrest. CPD was unable to take an initial

statement from D.D., who was sleeping at the time. CPD subsequently transferred

Patterson to jail.

{¶10} Over the next two days, police interviewed Patterson twice, thoroughly

questioning him about his involvement with B.T., Z.T., and their children and the

allegations against him. At the beginning of both interviews, Patterson signed a form

waiving his Miranda rights and spoke freely to detectives during most of the two

interviews. At some point during the second interview, Patterson expressed that he

wanted to speak to an attorney. Despite Patterson’s request, the detectives continued to

ask Patterson questions, which he continued to answer. Patterson’s trial counsel did not

file a motion to suppress any statements made during either interview.

{¶11} Prior to trial, the trial court held a competency hearing for both D.D. and

C.J., who were allegedly in the room when Patterson touched D.D. and is the daughter of

M.J. The court found both children to be competent.

{¶12} At trial, the state called D.N., C.T., M.S., and Z.T., who all recounted fairly

consistent versions of the events described above. Specifically, they all testified that

when they individually spoke to D.D., his accounts to each of them were consistent. The

state also called D.D. to testify. D.D. testified that on April 16, 2016, he was watching a

movie with his cousins at B.T.’s house when Patterson entered the room naked.

According to D.D., Patterson removed D.D.’s shirt and shorts and then squeezed his

private parts. D.D. also testified that later that evening, he awoke to find Patterson

threatening him with an extension cord and telling him not to tell anyone what happened.

The state additionally called Officer Kubiak from CMHA, Officer Hess from CPD, and

Detective Vowell from CPD’s Sex Crimes and Child Abuse Unit. Those witnesses

corroborated the events on May 25-26, 2016, and Detective Vowell discussed his

interviews with Patterson subsequent to his arrest. Patterson’s trial counsel thoroughly

cross-examined the state’s witnesses, but did not call any witnesses on behalf of

Patterson. C.J. was not called to testify by either the state or Patterson.

{¶13} The trial court found Patterson guilty on both counts in the indictment and

sentenced him to 20 years to life in prison, ordered him to pay the costs and expenses of

the case, and found him to be a Tier III sex offender/child offender registrant. It is from

this judgment that Patterson now appeals.

II. Manifest Weight of the Evidence

{¶14} In his first assignment of error, Patterson argues that his convictions were

against the manifest weight of the evidence. We disagree.

{¶15} Unlike sufficiency of the evidence, a challenge to the manifest weight of the

evidence attacks the credibility of the evidence presented. State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing

court may determine that a judgment of a trial court is sustained by sufficient evidence,

but nevertheless conclude that the judgment is against the weight of the evidence. Id.,

citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).

{¶16} Analyzing a claim under the manifest weight standard requires us to “review

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

the credibility of the witnesses, and determine whether, in resolving conflicts in evidence,

the factfinder clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed[.]” Thompkins at 387, citing State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). We are required to give “due deference”

to the factfinder’s conclusions because “the demeanor of witnesses, the manner of their

responses, and many other factors observable by [the factfinder] * * * simply are not

available to an appellate court on review.” State v. Miller, 8th Dist. Cuyahoga No.

100461, 2014-Ohio-3907, ¶ 58, citing Thompkins; State v. Bailey, 8th Dist. Cuyahoga No.

97754, 2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18,

1990 Ohio App. LEXIS 1204 (Mar. 4, 1990). “Further, * * * [we] must keep in mind

that questions of weight and credibility are primarily for the trier of fact to determine.”

State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶ 39, citing State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Accordingly, reversing a previous

conviction and ordering a new trial under a manifest weight of the evidence claim should

be saved for the “exceptional case in which the evidence weighs heavily against the

conviction.” State v. Bridges, 8th Dist. Cuyahoga No. 100805, 2014-Ohio-4570, ¶ 67,

citing Thompkins.

{¶17} In the instant case, Patterson challenges the evidence supporting his

convictions, claiming (1) D.D.’s testimony was the only testimony supporting his

convictions and his testimony contained inconsistencies and was uncorroborated, and (2)

had she testified, C.J. would have told the court that nothing unusual occurred on April

16, 2016, contradicting D.D.’s testimony.

A. D.D.’s Testimony

{¶18} Patterson argues that his convictions were a clear miscarriage of justice

because D.D.’s testimony was inconsistent and uncorroborated.

{¶19} “It is the province of the [factfinder] to determine where the truth probably

lies from conflicting statements, not only of different witnesses, but by the same witness.”

State v. Haynes, 10th Dist. Franklin No. 03AP-1134, 2005-Ohio-256, ¶ 24, quoting State

v. Lakes, 120 Ohio App. 213, 201 N.E.2d 809 (4th Dist.1964). “A conviction is not

against the manifest weight of the evidence solely because the [factfinder] heard

inconsistent testimony.” State v. Phillips, 8th Dist. Cuyahoga No. 103325,

2017-Ohio-1284, ¶ 33, quoting State v. Hill, 8th Dist. Cuyahoga No. 99819,

2014-Ohio-387.

{¶20} Patterson’s argument is similar to the one we rejected in State v. Martin, 8th

Dist. Cuyahoga No. 90722, 2008-Ohio-5263. In that case, the appellant argued that his

convictions were against the manifest weight of the evidence because “the victim, the sole

eyewitness to the events, gave conflicting information to police officers at the time of the

incident.” Id. at ¶ 32. Even though the victim’s testimony contained a number of

inconsistencies from his earlier statements — such as when the appellant pulled the gun,

whether or not the victim had a gun on his person, and where the victim obtained a gun

— we found those inconsistencies to be “minor and understandable in light of the fact

that [the victim] had just been robbed at gunpoint and shot three times.” Id. at ¶ 36-38.

{¶21} Likewise, the court in Malone rejected a manifest weight of the evidence

claim based on inconsistencies in the victim’s testimony. State v. Malone, 10th Dist.

Franklin No. 98AP-278, 1998 Ohio App. LEXIS 5647, *9 (Dec. 1, 1998). In that case,

the appellant cited to the eight-year-old victim’s conflicting answers when responding to

questions about whether her pants were on or off when the defendant touched her private

parts. Id. at *6. Despite those conflicting answers, the court affirmed the appellant’s

conviction for gross sexual imposition, noting that “the alleged inconsistencies fail to cast

such doubt on the victim’s testimony as to render the verdict against the manifest weight

of the evidence, especially because [the victim’s] statements generally, though not

completely, were consistent regarding the act of sexual contact with defendant’s penis.”

Id. at *9.

{¶22} Similar to Martin and Malone, Patterson fails to show any meaningful

inconsistencies establishing that his convictions are the exceptional case for which a

reversal under a manifest weight of the evidence claim exists. D.D.’s statements

concerning the events on April 16, 2016, were largely consistent. The only arguable

inconsistency that Patterson and his counsel continuously stressed at trial — D.D.’s

failure to mention Patterson’s threatening of him with the extension cord after the assault

— was more akin to a detail innocently omitted rather than an inconsistent statement. In

fact, during his testimony, Detective Vowell testified that child victims typically omit

details in their first interviews with family members and police officers. See State v.

Hartford, 21 Ohio App.3d 29, 31, 486 N.E.2d 131 (8th Dist.1984) (“Certain details

related to the police may naturally not be brought up on direct examination and some

details omitted from a witness statement may naturally crop up for the first time at trial,

and it is not appropriate to consider the omission of such details to be

‘inconsistencies.’”).1 When considering D.D.’s age and the stressful nature of the events

on May 25-26, 2016, it is understandable why D.D.’s testimony contained facts not

disclosed during his initial interviews with police. Finally, D.D.’s failure to disclose that

detail at an earlier time goes directly to the credibility and weight of the evidence, which

the trial court was in the best position to consider. Irby, 7th Dist. Mahoning No. 03 MA

54, 2004-Ohio-5929, ¶ 39, citing DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212. Here,

1

At oral argument, there was some discussion on whether Hartford was applicable and

remained good law. Specifically, appellant’s attorney contended that Hartford is irrelevant because

it concerns the ability to impeach a witness with an earlier statement. But we do not cite Hartford

for its disposition of the impeachment issue; rather, Hartford is relevant based on the above-cited

proposition’s holding regarding the comparison between omissions and inconsistencies. We have

repeatedly cited to Hartford for the above proposition and find it to be reliable and relevant to this

instant case. See State v. Washington, 8th Dist. Cuyahoga Nos. 102337 and 102338,

2015-Ohio-4982, ¶ 37; State v. Kenney, 8th Dist. Cuyahoga No. 80653, 2004-Ohio-972, ¶ 9; State

v. Hood, 8th Dist. Cuyahoga No. 80294, 2002-Ohio-4081, ¶ 26; State v. Culver, 8th Dist. Cuyahoga

No. 55895, 1989 Ohio App. LEXIS 5214, * 8-9 (Sept. 21, 1989).

the trial court, found that newly added detail was inconsequential to its determination of

guilt.

{¶23} Patterson also argues that D.D.’s testimony was not corroborated by other

witnesses. The appellant in Martin also made a similar argument, pointing to the fact

that “there were no other eyewitnesses or physical evidence to corroborate [the victim’s]

version of the events.” Martin at ¶ 42. We rejected this argument as well, stating that

“[a]lthough physical evidence and eyewitness testimony is helpful to prove a case, it is

not necessary.” Id. We found that the victim’s “testimony as to what happened, as

well as the three police officers’ testimony, was adequate direct and circumstantial

evidence for a rational jury to find Martin guilty beyond a reasonable doubt.” Id. We

concluded our opinion, stating, “When the state relies on circumstantial evidence to prove

an essential element of the offense charged, there is no need for such evidence to be

irreconcilable with any reasonable theory of innocence in order to support a conviction.”

Id. at ¶ 43.

{¶24} An appellant made a similar uncorroborated argument in State v. Derrick,

8th Dist. Cuyahoga No. 100010, 2014-Ohio-1073. In that case, the appellant argued that

his convictions were against the manifest weight of the evidence because the state did not

present any other evidence corroborating the victim’s testimony. Id. at ¶ 28.

Considering “the weight to be given the evidence and the credibility of the witnesses are

matters primarily for the trier of fact,” and the fact that the jury found the victim’s

testimony to be more credible, we rejected the appellant’s argument. Id., citing DeHass.

{¶25} Like Martin and Derrick, Patterson’s corroboration argument also fails.

While the state’s evidence was not unequivocal of Patterson’s guilt, it was surely enough

for a rational finder of fact to find Patterson guilty of both crimes. Further, sexual assault

cases “are essentially ‘one witness’ cases” and “are about individual complainant

credibility and reliability.” Smith, Representing Rapists: The Cruelty of Cross

Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53

Am.Crim.L. Rev. 255, 294 (2016). The state presented both direct and circumstantial

evidence largely corroborating D.D.’s testimony, and the trial court found that evidence to

be credible. Considering that the trial court was in the best position to weigh the

credibility of the witnesses’ testimony, we are not convinced that Patterson’s argument

has merit.

B. Nonexistent Testimony of C.J.

{¶26} Finally, Patterson claims that his convictions were against the manifest

weight of the evidence because, had C.J. testified, she would have testified that nothing

unusual occurred on April 16, 2016.

{¶27} Appellants, however, cannot base their manifest weight of the evidence

claims on evidence not in the record. State v. Hicks, 8th Dist. Cuyahoga No. 83981,

2005-Ohio-1842, ¶ 8; see also State v. Tyler, 2d Dist. Montgomery No. 15912, 1997 Ohio

App. LEXIS 4328, *19-20 (Sept. 26, 1997) (“In order to raise a question of whether a

conviction was against the manifest weight of the evidence, one must point to evidence in

the record that weighs heavily against the defendant’s conviction.”). Here, because

Patterson’s assertions about what C.J. would have said at trial are mere speculation and

were not included in the record, Patterson’s arguments concerning evidence outside the

record cannot support his first assignment of error.

{¶28} Based on the foregoing discussion and our review of the entire record, we

are not convinced that Patterson’s convictions are the “exceptional” case for which a

manifest weight of the evidence claim is reserved.

{¶29} Patterson’s first assignment of error is overruled.

III. Ineffective Assistance of Counsel

{¶30} In his second assignment of error, Patterson argues that he received

ineffective assistance from his trial counsel. Again, we disagree.

{¶31} While “[t]he right to counsel is the right to the effective assistance of

counsel,” the defendant carries the burden of establishing a claim of ineffective assistance

of counsel on appeal. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), citing McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25

L.Ed.2d 763 (1970); State v. Corrothers, 8th Dist. Cuyahoga No. 72064, 1998 Ohio App.

LEXIS 491, *19 (Feb. 12, 1998), citing State v. Smith, 3 Ohio App.3d 115, 444 N.E.2d 85

(8th Dist.1981). “Judicial scrutiny of defense counsel’s performance must be highly

deferential.” State v. Sanchez, 8th Dist. Cuyahoga No. 103078, 2016-Ohio-3167, ¶ 8,

citing Strickland. Further, “trial strategy or tactical decisions cannot form the basis for a

claim of ineffective counsel.” Id. at ¶ 26, citing Strickland and quoting State v. Foster,

8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186.

{¶32} To gain reversal on a claim of ineffective assistance of counsel, a convicted

defendant must show that (1) his “counsel’s performance was deficient,” and (2) “the

deficient performance prejudiced the defense.” Strickland at 687. The first prong of

Strickland’s test requires the defendant to show “that counsel’s representation fell below

an objective standard of reasonableness.” Id. at 688. Strickland’s second prong

requires the defendant to show “a reasonable probability that but for counsel’s errors, the

proceeding’s result would have been different.” State v. Winters, 8th Dist. Cuyahoga

No. 102871, 2016-Ohio-928, ¶ 25, citing Strickland.

{¶33} When deciding claims of ineffective assistance of counsel, courts may

analyze the two prongs out of order. Id. at 697; State v. Bradley, 42 Ohio St.3d 136,

143, 538 N.E.2d 373 (1989). “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, * * * that course should be followed.” Strickland

at 697.

A. Failure to File Motion to Suppress

{¶34} Patterson claims that his trial counsel was ineffective for not filing a motion

to suppress his statements to police.

{¶35} “Failure to file a motion to suppress does not constitute per se ineffective

assistance of counsel.” State v. Moon, 8th Dist. Cuyahoga No. 101972,

2015-Ohio-1550, ¶ 28. Instead, a defendant must show that the motion would have “had

a reasonable probability of success” and affected the outcome of the case. Sanchez, 8th

Dist. Cuyahoga No. 103078, 2016-Ohio-3167, ¶ 22; Moon at ¶ 28; see also State v. Kirk,

8th Dist. Cuyahoga Nos. 95260 and 95261, 2011-Ohio-1687, ¶ 46 (“Failure to file a

motion to suppress constitutes ineffective assistance of counsel only if, based upon the

record, the motion would have been granted.”). When scrutinizing an appellant’s trial

counsel’s failure to file a motion to suppress, a reviewing court must decide whether that

failure was a tactical decision based on the trial counsel’s investigation of the matter.

State v. Spring, 7th Dist. Jefferson No. 15 JE 0019, 2017-Ohio-768, ¶ 20, quoting State v.

Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52.

{¶36} Patterson’s argument fails because the decision not to file a motion to

suppress statements from the second interview with police was a strategic one. At trial,

in Patterson’s presence, the following exchange took place:2

PROSECUTOR: Second issue is in defendant’s second interview, he

does sign a waiver, he’s read his Miranda rights. And

at 24:05, the defendant says, I don’t want to talk

anymore and he says that he wants a lawyer. The

officer said, Do you want to reconsider? And the

defendant keeps on talking about this incident. * * *

DEFENSE I may want to address that part. * * * During

COUNSEL: my conversation with the prosecutors yesterday, I raised

concern about what the prosecutor just stated to the

Court, that at some point during the second interview

my client had suggested, told the officer, the

detectives, that he didn’t want to continue the

interview and that he wanted to have his lawyer and

2

Prior to the above exchange, both parties engaged in a lengthy discussion concerning

redactions to Patterson’s statements to police concerning Z.T.’s alleged coaching of the children. The

discussion lasted over the course of a few days while both parties went back and forth over what to

include and what was permissible under the Ohio Rules of Evidence. Ultimately, the court disagreed

with the state’s proposed redactions of those statements, allowing Patterson’s statements concerning

the coaching to come in for credibility purposes.

then they continued talking. At any rate, the bottom

line is I’ve had a conversation with my client today and

he is aware of that potential suppression issue and

we’re not going to be objecting — we’re not going to

raise an argument for suppression, that if they didn’t

say it continuously in the interview will be acceptable

with us.

COURT: So you’re not making an objection to that and you’re

waiving any rights to object?

DEFENSE Right.

COUNSEL:

The record makes it clear that Patterson and his counsel consciously considered whether

or not to file a motion to suppress and ultimately decided against it. Therefore, that

failure is not a basis on which Patterson can support his ineffective assistance claim.

{¶37} In addition, Patterson fails to make a showing of prejudice under

Strickland’s second prong. Patterson does not specify which statements were used

against him at trial and subject to suppression, and it is not this court’s duty to scour the

record for those statements. See Mayfair Village Condominium Owners Assn. v.

Grynko, 8th Dist. Cuyahoga No. 99264, 2013-Ohio-2100, ¶ 6 (“We are not obliged to

scour the record in search of evidence to support an appellant’s assignment of error.”); In

re E.G., 9th Dist. Medina No. 16CA0075-M, 2017-Ohio-2584, ¶ 27 (“Conclusions

without an evidentiary basis fail to provide this Court with a valid basis on which to

disturb the judgment of the trial court. * * *[I]t is not the duty of this Court to scour the

record for evidence and construct an argument on an appellant’s behalf.”). Moreover,

despite our freedom to forego any deeper scrutiny of the record, we thoroughly reviewed

the record and were still unable to identify which statements came after Patterson’s

request for an attorney. As a result, we cannot logically consider whether a motion to

suppress unidentified statements would have been successful and affected the outcome

of the trial.

B. Failure to Call C.J. as a Witness

{¶38} Patterson also claims that his trial counsel was ineffective because it failed

to call C.J. as a witness.

{¶39} Trial counsel’s decision to call or not call a witness constitutes trial tactics.

State v. Jones, 8th Dist. Cuyahoga No. 81112, 2003-Ohio-3004, ¶ 32, citing State v. Hunt,

20 Ohio App.3d 310, 486 N.E.2d 108 (9th Dist.1984). Tactical decisions by trial

counsel hardly ever serve as the basis for a claim of ineffective assistance of counsel

because “[t]he defendant must show that the witness’s testimony would have

‘significantly assisted the defense and affected the outcome of the case.’” State v.

Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶ 37, quoting State v. Griffith,

8th Dist. Cuyahoga No. 97366, 2012-Ohio-2628. In meeting that burden, the defendant

must be able to point to evidence in the record; otherwise, “any allegations of

ineffectiveness based on facts not appearing in the trial record should be reviewed

through the postconviction remedies.” State v. Barnes, 8th Dist. Cuyahoga No. 92512,

2011-Ohio-63, ¶ 8; see also State v. Curtis, 8th Dist. Cuyahoga No. 89412,

2008-Ohio-916, ¶ 8, citing State v. Cooperrider, 4 Ohio St.3d 226, 448 N.E.2d 452

(1983) (“The law is well settled that when allegations of ineffective assistance of counsel

hinge on facts not appearing in the record, the proper remedy is a petition for

postconviction relief rather than direct appeal.”).

{¶40} Here, the decision not to call C.J. as a witness was a tactical one based on

the fear of potentially exposing Patterson to additional charges not listed in the current

indictment. The record indicates that Patterson agreed with his trial counsel’s decision.

Further, contrary to Patterson’s assertions, the state’s disclosure did not indicate that C.J.

would have “testified that nothing unusual occurred on April 16, 2016[,]” but instead that

she did not “see anything happen with defendant” and D.D. In other words, C.J.’s

testimony was not definitive evidence of Patterson’s innocence, and Patterson does not

specifically identify any other record-based evidence to support his argument that he

would have been acquitted had C.J. testified.

{¶41} Even if Patterson sufficiently argued that C.J.’s testimony would have

affected the outcome of the case — which he has not, whether this argument is

meritorious is not for us to decide on direct appeal. Because Patterson failed to make an

offer of proof concerning C.J.’s unheard testimony, the record does not contain any

indication of what C.J. would have testified to. As such, his ineffectiveness argument

concerning C.J. relies on evidence that is outside the record, and Patterson should pursue

his claim of ineffective assistance of counsel through a petition for postconviction relief

under R.C. 2953.21.

{¶42} Patterson’s second assignment of error is overruled.

{¶43} Judgment affirmed.

It is ordered that appellee recover from appellant the 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 appeal 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.

MARY J. BOYLE, JUDGE

EILEEN T. GALLAGHER, P.J., and

ANITA LASTER MAYS, J., CONCUR