Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
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.
K. SHAW, Attorney for Defendant-Appellant.
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.
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
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
Ineffective Assistance of Counsel
21} Holley's First Assignment of Error states
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, ...