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State v. Nunez

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 8, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EMILIO NUNEZ, JR. DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case No. CR-16-603121-A Application for Reopening Motion No. 510351

          FOR 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 Prosecutor

          JOURNAL ENTRY AND OPINION

          SEAN C GALLAGHER, JUDGE

         {¶1} 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.

         {¶2} 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).

         {¶3} 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. Strickland

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 ...

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