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State v. Kirkendoll

Court of Appeals of Ohio, Ninth District, Lorain

December 9, 2019

STATE OF OHIO Appellee
v.
JOHNATHAN R. KIRKENDOLL Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 18CR099474

          GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, JUDGE.

         {¶1} Defendant-Appellant Johnathan Kirkendoll appeals from the judgment of the Lorain County Court of Common Pleas. This Court affirms.

         I.

         {¶2} Kirkendoll and the victim knew each other since childhood. But it was not until around March 2016 that the two began dating. After the victim moved to the west side of Lorain into an apartment, around Christmastime 2017, Kirkendoll began getting violent with the victim. Around this time, the building manager of the apartment sent Kirkendoll a notice and informed the victim that Kirkendoll was no longer allowed at the complex as he had previously kicked in the door of the apartment. The victim told the building manager that the victim informed Kirkendoll that he was no longer permitted there. The victim maintained that Kirkendoll never lived with the victim in her west side apartment. She further asserted that Kirkendoll was not on the lease and did not have a key. Only the victim and her young daughter were listed on the lease. However, Kirkendoll did stay at the victim's apartment "a lot[, ]" and occasionally for periods of a couple weeks at a time.

         {¶3} On August 9, 2018, Kirkendoll drove the victim to the hospital so that she could have emergency surgery due to an ectopic pregnancy. While at the hospital, Kirkendoll became irritated with the victim and the victim had to have Kirkendoll removed from the hospital. After the surgery, the victim went to stay at her mother's house and parked her car at a friend's house. She was afraid Kirkendoll would damage her car because he had made threats that he would do so.

         {¶4} The next morning, Kirkendoll wanted the victim to drive him to a court date but the victim explained that, because of her surgery, she was not allowed to drive. Shortly thereafter, the victim received a phone call from Kirkendoll telling her that she "might as well call the police and everything. [Kirkendoll] just destroyed [her] TV and everything else." The victim called the police and had the officer come to her mother's house because she was too afraid to go to her apartment. She told police that her apartment had been broken into and destroyed. The police retrieved a key from the victim and went to her apartment. The police discovered no forced entry but found the apartment in disarray. Bleach was poured all over, furniture was cut, food was thrown around, and the TV was smashed. Once police arrived, the victim returned to her apartment to survey the damage.

         {¶5} With respect to the events of August 10, 2018, Kirkendoll was charged with one count of burglary, one count of criminal damaging, and one count of criminal mischief.

         {¶6} On August 17, 2018, Kirkendoll was over and began asking the victim questions about different men. Kirkendoll then demanded the victim's phone and told the victim that she was "gonna tell [him] everything [he] want[ed] to know or [he was] gonna beat [her] to death or kill [her]." The victim believed he would do it because he had hurt her before. At the time, the victim's daughter was in another room in the apartment. As the victim gave Kirkendoll the phone, she ran out of the apartment and Kirkendoll followed her. The two struggled and Kirkendoll tried to drag the victim back into the apartment. During the struggle, the victim's arm was broken. When the victim broke free, she ran to the manager's building and called the police, but the police were unable to respond to the call at the time. Once the victim was sure that Kirkendoll was gone from the apartment, she returned to get her daughter. Thereafter, the victim went to the police station to file a report.

         {¶7} After the victim left the police station, she was too afraid to go back to the apartment. Later that day, the building manager was informed by a tenant that Kirkendoll had returned. Footage from the surveillance camera depicts an individual identified as Kirkendoll kicking in the door to the victim's apartment, entering the apartment, and minutes later leaving. The building manager called the police and the victim was informed of the incident. Police only talked to the victim on the phone as she was too afraid to return to the apartment even with police presence.

         {¶8} With respect to the events of August 17, 2018, Kirkendoll was charged with one count of burglary, one count of menacing by stalking, one count of assault, and one count of criminal trespass.

         {¶9} After that day, Kirkendoll continued to "constantly" call the victim's phone. On September 5, 2018, an officer responded to the victim's apartment because she had called police stating that Kirkendoll had called her and was en route to her apartment. The officer arrived and checked the property and residence but Kirkendoll was nowhere to be found. Around 15 to 20 minutes later, the victim again called police and informed police that Kirkendoll "was actively kicking in the door to her residence." When the officer arrived, he found "the door to be kicked in, partially opened with the door frame cracked." Kirkendoll was not located. The officer described the victim as "[t]errified" and that "she looked like she had been crying and she was very scared." Surveillance video shows a person identified as an acquaintance of Kirkendoll knock at the door and leave. Shortly thereafter, a person identified as Kirkendoll approaches the door, knocks, and leaves. Seconds later, Kirkendoll reappears, knocks on the apartment door, waits, turns to leave but then kicks the door, and then leaves.

         {¶10} As to the September 5, 2018 incidents, Kirkendoll was charged with menacing by stalking, criminal damaging, and criminal trespass.

         {¶11} The matter proceeded to a jury trial. The jury found Kirkendoll guilty of all of the charges aside from the burglary charge related to the events of August 10, 2018. The trial court sentenced Kirkendoll to an aggregate term of eight years and four months. In so doing, the trial court ordered two of the counts to run consecutively.

         {¶12} Kirkendoll has appealed, raising five assignments of error for our review.

         II.

         ASSIGNMENT OF ERROR I

         DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT.

         {¶13} Kirkendoll argues in his first assignment of error that his trial counsel was ineffective. Specifically, he asserts that trial counsel was ineffective in failing to file for discovery and in not filing a written motion to dismiss based upon speedy trial. Additionally, he contends trial counsel was unprepared for trial. Further, Kirkendoll maintains trial counsel was ineffective in failing to object to the jury instruction pertaining to the burglary charge from August 17, 2018.

         {¶14} In order to prevail on a claim of ineffective assistance of counsel, Kirkendoll must show that trial "counsel's performance fell below an objective standard of reasonableness and that prejudice arose from counsel's performance." State v. Reynolds, 80 Ohio St.3d 670, 674 (1998), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Kirkendoll must show that counsel's performance was objectively deficient by producing evidence that counsel acted unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second, Kirkendoll must demonstrate that but for counsel's errors, there is a reasonable probability that the results of the trial would have been different. Keith at 534.

         Discovery and Trial Preparation

         {¶15} Kirkendoll argues that his trial counsel was deficient in failing to file motions for discovery. However, the record is clear that trial counsel did not file a motion for discovery at the request of Kirkendoll. Specifically, trial counsel explained to the trial court:

My client has told me from day one he did not want to waive time in this matter, and he further instructed me not to file for discovery, as it would toll a limited amount of time. I honored that request.

I have some basic knowledge of it. I am prepared to go to trial and defend it with vigor. I did discuss the amount of time he could serve and would serve if he was to plead, but we needed to put everything on the record.

         {¶16} With respect to trial counsel's decision not to request discovery, this Court has stated "the omission is largely a matter of trial strategy, which does not demonstrate ineffective assistance." State v. Williams, 9th Dist. Lorain No. 09CA004830, 1991 WL 43317, *4 (Mar. 27, 1991); see also State v. Hatfield, 9th Dist. Wayne Nos. 1711, 1712, 1713, 1714, 1715, 1720, 1981 WL 3987, *1-2 (May 20, 1981). "The reasonableness of counsel's determination concerning the extent, method and scope of any criminal discovery necessarily depends upon the particular facts and circumstances of each case." State v. Allen, 10th Dist. Franklin No. 02AP-862, 2003-Ohio-1114, ΒΆ 7. Here, Kirkendoll himself asked trial counsel not to file for discovery in an effort ...


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