FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 18CR099474
GIOVANNA V. BREMKE, Attorney at Law, for Appellant.
P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant
Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR, JUDGE.
Defendant-Appellant Johnathan Kirkendoll appeals from the
judgment of the Lorain County Court of Common Pleas. This
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.
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
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
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.
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.
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.
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
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
As to the September 5, 2018 incidents, Kirkendoll was charged
with menacing by stalking, criminal damaging, and criminal
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.
Kirkendoll has appealed, raising five assignments of error
for our review.
OF ERROR I
DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED
BY THE SIXTH AMENDMENT.
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,
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.
and Trial Preparation
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.
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, ¶ 7.
Here, Kirkendoll himself asked trial counsel not to file for
discovery in an effort ...