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State v. Holley

Court of Appeals of Ohio, Second District, Montgomery

September 1, 2017

STATE OF OHIO Plaintiff-Appellee
SEAN A. HOLLEY Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-3905

          MATHIAS H. HECK, JR., by LYNNE R. NOTHSTINE, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.

          BYRON K. SHAW, Attorney for Defendant-Appellant.


          WELBAUM, J.

         {¶ 1} In this case, Defendant-Appellant, Sean Holley, appeals from his convictions for Felonious Assault and Domestic Violence. In support of his appeal, Holley contends that trial counsel rendered ineffective assistance of counsel by admitting that Holley was guilty of Domestic Violence; by discussing the details of jury deliberation during voir dire; by failing to poll the jury following its verdicts; by failing to give a closing argument at the suppression hearing; and by failing to object when the prosecution mentioned legal definitions during trial. In addition, Holley contends that his conviction for Felonious Assault is against the manifest weight of the evidence because the victim did not sustain serious physical harm.

         {¶ 2} After reviewing the record, we conclude that trial counsel did not render ineffective assistance of counsel, and that Holley's convictions are not against the manifest weight of the evidence. Counsel's actions either fell within the realm of trial tactics or did not fall below any objective standard of reasonable representation. The record also contains overwhelming evidence that the victim was rendered temporarily unconscious during the assault. This constitutes a temporary substantial incapacity, and, therefore, serious physical harm for purposes of R.C. 2903.11 (A)(1). Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 3} In late December 2015, Holley was indicted on charges of Felonious Assault, Domestic Violence (one prior conviction), Theft, and Aggravated Burglary. These charges arose from an incident that occurred on December 17, 2015, at an apartment on Bronson Avenue in Jefferson Township, Ohio.

         {¶ 4} The victim of the alleged crimes was M.C., who had been in a relationship with Holley for seven years. M.C. was also the mother of Holley's son, L.H.

         {¶ 5} M.C. and Holley met in 2008, and lived together for about seven years at multiple addresses. At the time of the incident in question, L.H. was three years old, and M.C. and Holley had lived at the Bronson Avenue address since November 2013. During the course of their relationship, they had broken up and reconciled numerous times, and Holley had previously pled guilty in 2009 to a domestic violence charge filed in Dayton Municipal Court. M.C. was the victim in that case.

         {¶ 6} In early December 2015, M.C. left the apartment, taking L.H., and went to live with her grandmother, who was ill. There was some dispute at trial over the circumstances of her departure, whether Holley was supposed to be living at the apartment, and the reason why M.C. returned to the apartment on December 15, 2015. However, these factual differences are basically irrelevant because the jury acquitted Holley of the Theft and Aggravated Burglary charges. What is not disputed is that when M.C. returned to the apartment on December 17, 2015, she did not expect Holley to be there.

         {¶ 7} When M.C. entered the apartment, Holley was sitting on the couch. He got up and hugged her. M.C. and Holley disputed what occurred after that. According to M.C, Holley asked if she wanted to get back together, and she laughed it off. They then began to argue over a phone Holley had given her. M.C. testified that when she refused to give Holley the phone, Holley hit her in the face, then grabbed her, threw her on the couch, and choked her until she passed out. When M.C. woke up, Holley's back was to her, and he was trying to access her phone. M.C. then ran out of the apartment, where she saw a maintenance man and began screaming for help.

         {¶ 8} According to Holley, he and M.C. talked for a bit and then he asked her about a cell phone video he had received a few weeks before from a mutual friend. The video involved M.C. and another man. The conversation became heated, and Holley asked for the phone back, as he did not think he should pay the phone bill while M.C. was out having sexual encounters with other men. They struggled over the phone, and Holley admitted pushing M.C. down hard on the couch while attempting to get the phone away. He finally got the phone and was trying to unlock it when he noticed that M.C. had run out of the apartment. He ran after her because he was angry and emotional and wanted to resolve the issue.

         {¶ 9} Again, the stories diverge once M.C. left the apartment. There were witnesses, however. Gary R., a maintenance man for the apartment complex, saw a woman running out of her apartment, hollering for help. A young man (later identified as Holley) came behind her and they eventually went down on the ground. Gary observed Holley beating the woman badly, and called 911. While he was on the phone with the dispatcher, Holley was using his fists, beating the woman, and then began choking her. Gary told the dispatcher they might need to send a medic because he thought the woman was badly hurt. She had stopped moving.

         {¶ 10} A neighbor, Charlene P., testified that she heard someone screaming for help and looked out her bedroom window. She saw her next-door neighbors fighting and dialed 911. Charlene called 911 because she feared for the woman's life. The man (later identified as Holley), was sitting on top of the woman, banging her head on the ground, and then he started punching her. At first the woman was fighting back, but after a few minutes, she went limp and was not moving anymore. Charlene told the 911 operator the woman was not breathing; she actually thought the woman was dead. Charlene then saw a slight movement of the woman's arm and saw Holley begin to choke her again. At that point, Charlene heard sirens, and Holley got off the woman and ran into the apartment.

         {¶ 11} Another resident of the complex, Allen B., was working on his car and heard a woman screaming, "Somebody help me, he's trying to kill me." Transcript of Proceedings, Vol. I., p. 218. At first Allen thought kids were playing. However, he then saw the man (again, later identified as Holley) pushing the woman to the ground. As Allen got closer, he saw Holley banging the woman's head against the ground and punching her. Allen began asking Holley to get off the woman, and pulled Holley off for a brief moment, but Holley jumped back on the woman. At that point, Holley had his hands on the woman's neck, choking her. The woman was trying to get Holley's hands off and was kicking. At that point, the woman started foaming at the mouth and her eyes got ready to roll to the back of her head. She appeared to lose consciousness. The woman's arm dropped, and Allen pushed Holley off the woman.

         {¶ 12} Allen testified that he began walking the woman back to some other women who were outside. By that time, Holley had run inside the house. A few minutes later, Allen ran towards the back of the apartment and saw Holley running up the street toward a gas station. Allen indicated that the woman had blood in her mouth and it got on his shirt.

         {¶ 13} Brandy S. was also a neighbor. She heard a noise and came out of her apartment, where she then heard someone screaming. When she got closer, she saw the woman on her back and a man (later identified as Holley) choking the woman, and saying "It's life or death; this is my life." Transcript of Proceedings, Vol. I, p. 235. Brandy began screaming at the man and at Allen, trying to get Allen to intervene. Holley had both hands around the woman's neck. The woman was not able to respond; her eyes were rolling back in her head and she was foaming at the mouth. While this was happening, Brandy was yelling at Allen to get Holley off, as he was going to kill the woman.

         {¶ 14} The woman was "gone" for a minute, and then Holley jumped back on her neck, trying to choke her. When Allen pulled at the man's arm, Brandy told the woman to run to Brandy's house. She was able to get the woman safely to her (Brandy's) home. Brandy described the woman as terrified. Even after the police arrived, the woman did not want to go to the hospital because she was afraid Holley would come to look for her.

         {¶ 15} According to M.C., after she ran outside, she asked the maintenance man for help and he backed away. Holley then grabbed her by her hair and ripped her hairpiece off her head. Holley threw her down on the ground and began choking her again. M.C. thought she heard Holley saying, "If I can't have you, nobody else can; I'm going to kill this 'B.' " Transcript of Proceedings, Vol. I, p. 138. M.C. passed out again, and when she came to, a man was standing by Holley's shoulder, telling him to get off her. She passed out once more, and when she came to, Holley was choking her so hard that her teeth were "clenched" into her tongue. She also said Holley banged her head on the concrete three times.

         {¶ 16} After M.C. got to Brandy's home, she was coughing and her head, tongue, and neck were pounding. However, she refused to go to the hospital because she was afraid Holley would meet her at the hospital. Instead, she waited for her father to pick her up. The police took pictures of her neck and she made a report.

         {¶ 17} Holley testified that when he caught up to M.C. outside, he grabbed her around the waist area, like a bear hug. He was trying to drag her back into the apartment, pulling her. However, M.C. put her body weight down so she dropped to the ground, and he fell with her. Holley then tried to get her up and they were arguing. M.C. was calling him vulgar names and he got on top of her, straddling her. He put his hands on her chest and put force down onto her chest. Holley said he was still angry but did not want to strike M.C. He denied punching M.C. multiple times or choking her. He admitted that Allen had persuaded him to briefly get off M.C, but when M.C. began calling him names, he went back and did the same thing, using force to push M.C. on the chest area and shoulder, into the ground. According to Holley, he finally realized it "wasn't worth it, " so he got up and walked into the apartment. Transcript of Proceedings, Vol. II, p. 300.

         {¶ 18} Holley denied running away, and said he walked to the bus stop. He admitted that he knew what he had done, and that he had done something wrong that day. Id. at p. 324.

         {¶ 19} Scott Morgan, a detective with the Montgomery County Sheriffs Office, met with M.C. on December 18, 2015, and took photos of her injuries. M.C. had bruises on her chest and neck area, along with a cut mark on her tongue. On December 21, 2015, Morgan telephoned Holley and left a message. Holley called Morgan back a few hours later. During their conversation, Morgan told Holley that he had warrants for his arrest and that Holley needed to turn himself in. Holley said he wanted to see his son and would turn himself in when he was ready. Holley was arrested at the Bronson Avenue apartment later that day.

         {¶ 20} As was noted, an indictment was filed on December 30, 2015, charging Holley with Felonious Assault, Domestic Violence, Theft, and Aggravated Burglary. During the proceedings, Holley filed a motion to suppress, which was denied. Following a jury trial, Holley was acquitted of Theft and Aggravated Burglary and was convicted of the remaining charges. The trial court sentenced Holley to eight years in prison on the Felonious Assault charge and to 18 months in prison for Domestic Violence, with the terms to run concurrently. Holley now appeals from the judgment of the trial court.

         II. Ineffective Assistance of Counsel

         {¶ 21} Holley's First Assignment of Error states that:

Appellant's Conviction and Sentencing Should Be Overturned Due to an Ineffective Assistance of Counsel.

         {¶ 22} As noted, Holley asserts that trial counsel rendered ineffective assistance in several ways. After setting forth the general standards for such claims, we will consider each issue separately.

         {¶ 23} We review ineffective assistance of trial counsel claims under the analysis established in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley,42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Based on these cases, trial attorneys are entitled to a strong presumption that their conduct falls within a wide range of reasonable assistance. Strickland at 688. "Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." (Citations omitted.) Bradley at 137, paragraph two of the syllabus. "To show that a defendant has been prejudiced by counsel's deficient performance, ...

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