Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-16-603121-A
Application for Reopening Motion No. 510351
APPELLANT Emilio Nunez, Jr. Inmate No. 683623 Belmont
Correctional Institution P.O
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Gregory Ochocki Assistant County
JOURNAL ENTRY AND OPINION
Emilio Nunez, Jr. has filed a timely application for
reopening pursuant to App.R. 26(B). Nunez is attempting to
reopen the appellate judgment rendered in State v.
Nunez, 8th Dist. Cuyahoga No. 104623, 2017-Ohio-4295,
that affirmed his conviction for the offense of felonious
assault. We decline to reopen Nunez's original appeal.
In order to establish a claim of ineffective assistance of
appellate counsel, Nunez is required to establish that the
performance of his appellate counsel was deficient and the
deficiency resulted in prejudice. Strickland v.
Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110
S.Ct. 3258, 111 L.Ed.2d 767 (1990).
In Strickland, the United States Supreme Court held
that a court's scrutiny of an attorney's work must be
highly deferential. The court further stated that it is all
too tempting for a defendant to second-guess his attorney
after conviction and that it would be too easy for a court to
conclude that a specific act or omission was deficient,
especially when examining the matter in hindsight. Thus, a
court must indulge in a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.
Herein, Nunez has raised two proposed assignments of error in
support of his application for reopening. Nunez's initial
proposed assignment of error is that:
Appellant's convictions are based upon insufficient
evidence as a matter of law. In violation of the due process
clause of the Fourteenth Amendment U.S. Const, Article 1 Sec.
16 Ohio Const.
Nunez, through his first proposed assignment of error, argues
that insufficient evidence was adduced at trial to support
his conviction for the offense of felonious assault.
Although sufficiency of the evidence and manifest weight of
the evidence comprise different legal concepts, manifest
weight must subsume sufficiency in conducting the required
analysis; that is, a finding that a conviction is not against
the manifest weight of the evidence necessarily includes a
finding of sufficiency. State v. Robinson, 8th Dist
Cuyahoga No. 96463, 2011-Ohio-6077; Cleveland v.
Kirkpatrick, 8th Dist. Cuyahoga No. 94950,
2011-Ohio-2257; State v. Parks, 10th Dist. Franklin
No. 09AP-810, 2010-Ohio-2105. "[T]hus, a determination
that a conviction is supported by the weight of the evidence
will also be dispositive of the issue of sufficiency."
State v. Braxton, 10th Dist. Franklin No. 04AP-725,
2005-Ohio-2198, ¶ 26.
On direct appeal, this court has already determined that
Nunez's conviction for the offense of felonious assault
was supported by the manifest weight of the evidence.
Finally, when reviewing a claim challenging the manifest
weight of the evidence, the court, reviewing the entire
record, must weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and
determine 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, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541. Reversing a conviction as being against the
manifest weight of the evidence should be reserved for only
the exceptional case in which the evidence weighs heavily
against the conviction. Id
We cannot conclude that a manifest miscarriage of justice
occurred in this instance. Nunez largely relies on the
evidentiary issues as the basis to demonstrate the jury lost
its way. Having overruled the evidentiary arguments, we need
not reconsider them. Further, Nunez's only argument is
that he is more credible than K.K. because the only
identification of Nunez as the attacker came from prior
statements that K.K. had conveniently "forgotten"
by the time of trial. Nunez, by his own admission, violated
the no-contact order and enticed K.K. into
"forgetting" about the incident, thereby causing
the credibility issue he now relies on. Nevertheless, the
jury was free to assess K.K.'s trial credibility from all
the evidence presented, and in this case, we cannot conclude
from the arguments ...