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State v. Holtman

Court of Appeals of Ohio, Twelfth District, Clermont

July 29, 2019

STATE OF OHIO, Appellee,
SETH M. HOLTMAN, Appellant.


          D. Vincent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, for appellee.

          Denise S. Barone, for appellant.


          HENDRICKSON, P.J.

         {¶ 1} Appellant, Seth M. Holtman, appeals from his misdemeanor conviction in the Clermont County Municipal Court for aggravated menacing. For the reasons set forth below, we affirm appellant's conviction and sentence.

         {¶ 2} Appellant was charged with one count of aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree. The charge arose out of allegations that on September 14, 2018, appellant pointed a firearm at his girlfriend's mother, Heather Johnson, causing Johnson to believe appellant would cause her serious physical harm.

         {¶ 3} Appellant appeared before a magistrate with counsel and entered a not guilty plea. During the hearing, the magistrate discussed appellant's rights with him. The magistrate advised appellant, in relevant part, that he had "the right to a trial by jury. If you want a jury trial its required that you first file a timely jury demand." Appellant indicated that he understood his rights.

         {¶ 4} No demand for a jury trial was filed by appellant and a bench trial was held on October 5, 2018. The state presented testimony from Johnson and from the investigating officer, Greg McAllister. Johnson testified that on September 14, 2018, she went to a mobile home park in Goshen Township, Clermont County, Ohio to pick up her daughter, Elizabeth, so that she could take Elizabeth to work. When Johnson was picking up Elizabeth, appellant came outside the residence with a pistol in his waistband. Appellant removed the pistol from his waistband and set it upon a railing. Johnson commented on the weapon and appellant picked the gun up and pointed it at Johnson as she was sitting in her car.

         {¶ 5} Johnson stated that she knew appellant owned firearms because he had previously talked about his guns and the weapon he was pointing at her "looked real." Johnson testified appellant's actions caused her to fear that appellant would shoot her. Because she was not sure what appellant was going to do, she wanted to "get out of there as quick as [she] could." After leaving the mobile home park, Johnson called the police to report appellant's conduct.

         {¶ 6} Officer McAllister testified that he investigated Johnson's complaint and, during the course of his investigation, he spoke with Johnson, Elizabeth, the passenger who accompanied Johnson to pick up Elizabeth, and appellant. McAllister also collected the weapon appellant had brandished. McAllister testified the weapon had the appearance of a real firearm but was, in fact, just a pellet gun altered to look like a real gun. The weapon, a "replica of [the] 1911, which is a long fame gun," had the orange tip blackened out with marker or paint to make it look more realistic.

         {¶ 7} When McAllister spoke to appellant, appellant admitted he had the gun on him at the time of the incident with Johnson. However, appellant denied he pointed the gun at Johnson or her passenger. Appellant told McAllister he had pulled a knife on Johnson's passenger and told the passenger, "You're gonna stick yourself."

         {¶ 8} Following the state's presentation of its case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29. The trial court denied his motion, and appellant presented testimony from his girlfriend in support of his defense. Elizabeth testified that appellant had the gun in his pants and he laid it down on a railing during the incident with Johnson. Elizbeth stated she "did not see" appellant point the gun at Johnson or make any kind of threat towards Johnson. On cross-examination, Elizabeth indicated she did not recall telling Officer McAllister that she had her back turned for a portion of the incident.

         {¶ 9} After considering the foregoing testimony, the trial court found appellant guilty of aggravated menacing and sentenced him to 170 days in jail. After the court announced its sentence and advised appellant of his right to appeal, appellant indicated, for the first time, that he had desired a jury trial on the charge. The court, after questioning appellant's counsel, noted that appellant had not filed a jury demand. The court therefore denied appellant's request and adjourned the proceeding.

         {¶ 10} Appellant timely appealed, raising three assignments of error for review.

         {¶ 11} Assignment of Error No. 1:


         {¶ 13} In his first assignment of error, appellant argues his conviction for aggravated menacing was not supported by sufficient evidence and was against the manifest weight of the evidence.[1] Appellant also argues that his trial counsel was ineffective for failing to object to hearsay testimony and the prosecutor's use of compound and leading questions. We will begin by addressing appellant's ineffective assistance of counsel arguments.

         {¶ 14} In order to prevail on an ineffective assistance of counsel claim, an appellant must establish that (1) his trial counsel's performance was deficient and (2) such deficiency prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's performance will not be deemed deficient unless it "fell below an objective standard of reasonableness." Id. at 688. To show prejudice, the appellant must prove there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).

         {¶ 15} Appellant argues counsel was ineffective for failing to object to alleged hearsay evidence offered at trial. Specifically, appellant argues his trial counsel was deficient for not objecting to Johnson's testimony that "My daughter, she called me and she said, 'Mom, can you come pick me up?'" Appellant also ...

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