State v. Terry

S
[Cite as State v. Terry, 

2021-Ohio-2091

.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                              :     APPEAL NO. C-200105
                                                  TRIAL NO. 19CRB-23438
      Plaintiff-Appellee,                   :
                                                     O P I N I O N.
   vs.                                      :

FERNANDO TERRY,                             :

      Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 23, 2021



Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Keith C. Forman, Supervising Attorney, for Plaintiff-Appellee,

Clyde Bennett, II, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

       {¶1}    Defendant-appellant Fernando Terry appeals his conviction for

assault, arguing in a single assignment of error that his trial counsel rendered

ineffective assistance. Finding his argument to be without merit, we affirm the trial

court’s judgment.

                        Factual and Procedural Background


       {¶2}   Following an altercation with Teninnah Ross, Terry was charged with

assault, a first-degree misdemeanor in violation of R.C. 2903.13. At a jury trial, the

state presented evidence that Terry accosted Ross, his on-again/off-again girlfriend,

in her driveway. Terry claimed he acted in self-defense.

       {¶3}   In her opening statement, Terry’s counsel raised the issue of self-

defense, telling the jury that Ross slapped Terry first, and he hit her back in self-

defense.

       {¶4}   Ross testified that she was speaking with her sister on the telephone as

she exited from her car onto her driveway, when she saw Terry approaching. Terry

accused her of not answering his calls and stated “[y]ou going to do me like this,

Juicy [Terry’s nickname for Ross]?” Terry then punched Ross in the jaw and began

choking her. Ross fell to the ground, scraping her elbow and knees, and screamed

for help. Ross’s mother exited from the home to help Ross. Fearful he was going to

hit her mother, Ross grabbed Terry’s legs, causing him to fall over. Ross denied

slapping Terry first. Terry subsequently got up and fled from the scene. He later

sent Ross messages apologizing for his actions. These messages stated “Morning I

would like to apologize for my actions I’ve always loved u didn’t see u in ten days and



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                       OHIO FIRST DISTRICT COURT OF APPEALS



lost it don’t matter what happens to me without u guest [sic] he the better man true

love won’t ever die” and “I call to apologize that s [sic] all I can say.”

       {¶5}    Ross testified regarding her relationship history with Terry.      She

explained that Terry had a history of making threatening statements about hurting

anyone else she was with, and testified that Terry had previously told her that “I can

do what I need to do and be done before the police gets there,” and “even if we’re not

together, do you think that means that I won’t do something if I see you out.” Terry

continually told Ross that she underestimated him. Ross additionally testified that

Terry engaged in stalking behavior and would show up at her home uninvited.

       {¶6}    Terry testified in his own defense. He explained that he and Ross had

plans to meet on the evening of the altercation, and that he had parked outside

Ross’s home while waiting for her to return. He approached Ross once she arrived

home, and she “took an attitude” when he tried to talk to her. According to Terry,

Ross did not want to hear what he had to say, and she turned away from him. Terry

reached for her, and Ross smacked him in the face. Terry stated that he then hit

Ross in the jaw in response. He testified that Ross struck him first and that he only

struck her back “in reaction.” He said because he used to be a boxer, this was his

reaction to being slapped. When asked by his counsel if he believed that Ross would

hit him again, he answered “no.” According to Terry, after her slap and his hit, the

two began to grab at each other and eventually both fell to the ground.           The

altercation ended when Terry voluntarily left. Terry acknowledged sending messages

of apology to Ross and explained that he was apologizing for his actions and for

losing his cool.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}    Terry also testified regarding the relationship history between him and

Ross. He denied threatening Ross throughout their relationship and denied making

the statements that Ross attributed to him during her testimony about his

threatening behavior.

       {¶8}    During closing arguments, Terry’s counsel argued that he had acted in

self-defense, and the jury was given an instruction on self-defense. The jury returned

a verdict finding Terry guilty of assault.

                                 Ineffective Assistance


       {¶9}    In his sole assignment of error, Terry argues that he received

ineffective assistance from his trial counsel.

       {¶10} To prevail on an ineffective-assistance claim, an appellant must

demonstrate that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland v. Washington, 

466 U.S. 668

, 687,

104 S.Ct. 2052

, 

80 L.Ed.2d 674

 (1984); State v. Bradley, 

42 Ohio St.3d 136

, 141-142,

538 N.E.2d 373

 (1989).       In reviewing defense counsel’s performance, we must

remain highly deferential. Strickland at 689. We must “recognize that counsel is

strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” 

Id. at 690

.         An

appellant’s demonstration that counsel’s performance was deficient does not warrant

the reversal of a conviction if counsel’s error had no effect on the judgment. 

Id. at

691

; Bradley at 142. The appellant must affirmatively demonstrate that there is a

reasonable probability that, but for counsel’s deficient performance, the result of the

trial would have been different. Strickland at 693-694; Bradley at 143.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                            1. Questioning During Voir Dire


       {¶11} Terry first argues that defense counsel was ineffective for failing to

properly voir dire potential jurors to ensure that the seated jury could be fair and

impartial. “[C]ounsel’s conduct during voir dire is presumed to be a matter of trial

strategy.” State v. Smith, 

2017-Ohio-8558

, 

99 N.E.3d 1230

, ¶ 57 (1st Dist.). “[V]oir

dire by defense counsel does not have to take a particular from, nor do specific

questions have to be asked.” State v. Johnson, 

2013-Ohio-2719

, 

994 N.E.2d 896

, ¶

18 (1st Dist.), quoting State v. Evans, 

63 Ohio St.3d 231

, 247, 

586 N.E.2d 1042

(1992).

       {¶12} Terry contends that defense counsel failed to thoroughly question five

specific jurors. But two of these jurors were excused by the state during the voir dire

process. Terry thus suffered no prejudice from any failure on the part of defense

counsel to properly question these two jurors. With respect to juror number seven,

Terry argues that defense counsel failed to properly question this juror on his

statements that he could not be a good juror and that he worked with the police. Our

review of the record reveals that Terry mischaracterizes juror number seven’s

statements. While juror number seven wrote on the jury questionnaire that he did

not think he would be a good juror, he stated during voir dire that he could be a good

juror, based on his life experience and common sense. Juror number seven further

explained that he had worked with the police on one specific occasion to eradicate a

crack house that had “popped up” in his neighborhood. He gave no indication that

he was biased in favor of police or the state, and the record does not indicate that

juror number seven was unable to be fair and impartial.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} Terry further argues that defense counsel failed to properly question

juror number nine concerning her statements that her sister worked for the

Columbus Police Department and that her father abused her mother. But this juror

did not state that her sister worked for the Columbus Police Department. Rather,

she indicated that her sister-in-law was a forensic scientist who conducted DNA

testing for the Columbus Police Department, and that her sister-in-law’s job would

not interfere with her ability to be a good juror or to be fair to both Terry and the

state. As for juror number nine’s statements regarding her family history of abuse,

she indicated that this family history would not sway her in either direction when

attempting to reach a verdict.

       {¶14} Terry last challenges defense counsel’s failure to engage in a thorough

voir dire of juror number ten concerning her statement in her juror questionnaire

that she did not think she could be a good juror. A review of the record reveals that

juror number ten never stated during voir dire questioning that she could not be a

good juror. Rather, when asked about her questionnaire, juror number ten actually

stated that “I feel like I would be good. I just don’t like judging people, but I’m good

at seeing both sides of stuff.” She further acknowledged that her discomfort with

sitting in judgment of others would not prevent her from finding Terry guilty if the

evidence so demonstrated, or from acquitting him if the evidence was insufficient.

       {¶15} Following our review of the record, we conclude that defense counsel

engaged in a thorough questioning of the potential jurors during voir dire and that

her performance was not deficient.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


           2. Introduction of Allegedly Prejudicial and Irrelevant Testimony


       {¶16} Terry next argues that defense counsel was ineffective for failing to

prevent the introduction of prejudicial and irrelevant testimony. He specifically

contends that defense counsel failed to object to Ross’s statements about Terry

hurting her in the past, to past incidents of Terry showing up at Ross’s home without

an invitation, and to past incidents of Terry stalking Ross.

       {¶17} Ross testified that her relationship with Terry had both good points

and bad points. The bad points included Terry’s aggressiveness, including his threat

to hurt anyone else with whom Ross was in a relationship. Ross testified that Terry

told her “I can do what I need to do and be done before the police gets there,” and

“even if we’re not together, do you think that means that I won’t do something if I see

you out.” Defense counsel did not object to these statements.

       {¶18} Ross additionally testified that Terry showed up at her home uninvited

on numerous occasions, and once entered her home without permission. Defense

counsel objected when Ross testified that Terry’s behavior scared her children, but

the trial court overruled the objection. Ross also testified to what she described as

“stalking behavior” by Terry, including an incident where he followed her while she

was celebrating her birthday on an evening when she had believed him to be out of

town. The trial court sustained defense counsel’s objection to Ross’s testimony that

Terry had a gun in his possession during this incident.

       {¶19} While defense counsel did not object to all of Ross’s testimony, she

thoroughly cross-examined Ross regarding her testimony about Terry and his

aggressive nature and stalking behaviors.          In response to defense counsel’s

questions, Ross acknowledged that she never reported any of Terry’s behavior to law




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                       OHIO FIRST DISTRICT COURT OF APPEALS



enforcement. Defense counsel’s treatment of Ross’s testimony is a matter of trial

strategy that we will not second guess. By obtaining Ross’s admission that she never

reported Terry’s behavior, defense counsel established a reasonable inference that

Ross was not bothered by Terry’s behavior or that Ross had been untruthful and

exaggerated Terry’s actions.

       {¶20} Defense counsel also questioned Terry about his relationship with

Ross and about the incidents that Ross testified to, allowing Terry to present the jury

with his version of these incidents. We therefore cannot find that defense counsel

was deficient in failing to raise objections to the portions of Ross’s testimony set

forth in Terry’s appellate brief.

                             3. Failure to Argue Self-Defense


       {¶21} Terry last argues that defense counsel was ineffective for not knowing

the elements of self-defense and for not attempting to introduce evidence of self-

defense.

       {¶22} Contrary to Terry’s assertion, the record indicates that defense counsel

attempted to elicit testimony from him to establish that he acted in self-defense.

Terry testified that he did not hit Ross until after she struck him in the face, and

explained that he only hit her in reaction to being hit himself. Defense counsel

additionally asked Terry whether he believed that Ross would hit him again. By

asking this question, defense counsel was likely attempting to establish the element

of self-defense that Terry had reasonable grounds to believe he was in imminent

danger of bodily harm. Unfortunately for defense counsel, Terry answered that

question in the negative, which did not assist in Terry’s self-defense argument, and

in fact undercut it.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} Defense counsel further argued that Terry had acted in self-defense

during closing argument, stating:

       Now, in self-defense—the judge will tell you—it will be in your

       instructions, but you have to put yourself in the shoes of the

       defendant, of Mr. Terry. It’s not what you would have done; it’s what a

       person in Mr. Terry’s circumstances and his life experiences with [sic]

       have done. So she smacked him, and in a split reaction he hit her

       back. He said when he gets hit, he hits back. When you’ve been hit,

       especially out of the blue, you don’t know what’s about to happen next.

       You don’t know what the other person is about to do.

                                        *   *   *

       This incident started when Miss Ross struck Fernando in the face,

       when she slapped him across the face. He reacted. He hit her back not

       knowing what was going to happen next. He went to her house based

       on her invitation earlier that evening and was struck in the face.

                                        *   *   *

       At the end of the day, this was a fight, a fight that Teninnah Ross

       started when she smacked him in the face. Fernando acted in that self-

       defense when he was hit. At worse this was a fight that started with

       her hitting him and became mutual. Therefore, I would ask you to find

       him not guilty of the assault.

       {¶24} We point out that counsel was “stuck” with Terry’s answers and made

the best argument she could with the testimony given at trial. Had the facts been

different, perhaps she could have made a stronger self-defense argument. However,




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                      OHIO FIRST DISTRICT COURT OF APPEALS



counsel can only argue from the facts in the record. She could not, for example, have

argued as to one of the key elements of self-defense—fear of harm—in light of Terry’s

testimony that he did not believe Ross would hit him again. As defense counsel both

elicited testimony from Terry regarding self-defense and argued self-defense during

closing argument, Terry’s argument that defense counsel was ineffective for failing to

introduce evidence of self-defense is without merit.

       {¶25} We hold that Terry did not receive ineffective assistance from his trial

counsel. Terry’s assignment of error is overruled, and the judgment of the trial court

is affirmed.

                                                                      Judgment affirmed.



BERGERON and HENDON, JJ., concur.


SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by
assignment.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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