author: DORRIAN, J.

text:
    AM AND JV, LLC et al., Plaintiffs-Appellees, v. MYFLORI, LLC et al., Defendants-Appellants,
    John Does 1-5, Defendants-Appellees.
    No. 16AP-713
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 15, 2018
    On brief: The Donnell Law Group, and Titus G. Donnell, Columbus, for appellees AM and JV, LLC, and Aleksandar G. Mitrevski. Argued: Titus G. Donnell.
    On brief: Anthony Law LLC, Michael J. Anthony, Vincent P. Zuccaro, and Andrew D. Randol, Columbus, for appellants MyFlori, LLC, and Jim Velio. Argued: Andrew D. Randol.
    DECISION
   DORRIAN, J.

{¶ 1} Defendants-appellants, Jim Velio ("Velio") and MyFlori, LLC ("MyFlori") (collectively "appellants"), appeal the September 14, 2016 decision and entry of the Franklin County Court of Common Pleas. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} This matter arises out of a dispute between Velio and Aleksandar G. Mitrevski ("Mitrevski"), joint owners of the business venture AM and JV, LLC ("AM and JV"). Prior to entering into business with Velio, Mitrevski operated a used car dealership at 1940 South High Street in Columbus ("the property"), a property which he owned.

{¶ 3} In 2008, Velio approached Mitrevski about becoming a partner in Mitrevski's dealership. Following negotiations, Mitrevski and Velio formed AM and JV as joint owners pursuant to an operating agreement that both signed. Velio agreed to provide Mitrevksi with $195,000 and to invest an additional $50,000 in the business. In exchange, Mitrevski transferred the title for the property to AM and JV and agreed to invest $50,000 in the business. Mitrevski was responsible for the day-to-day operations of the dealership and was to receive a salary. Profit from the business was to be split equally between Mitrevski and Velio. The operating agreement specifically provided that "[t]he unanimous consent of the Members shall be required before the Company may * * * [a]quire, sell, lease or other transfer or disposition of, or mortgage, pledge or the placing or suffering of any other encumbrance on or affecting all of the Company's property or any portion thereof." (Appellant's Sept. 14, 2015 Motion for New Trial, Ex. B, Operating Agreement at 5-6.)

{¶ 4} According to Mitrevski, in January 2010, Toty Auto Repair ("Toty") began renting part of the property for $2,000 per month, which he split with Velio. In June 2010, Mitrevski and Velio agreed to sell the property because the business was failing. While they waited for the property to sell, Mitrevski claimed that Velio agreed to take all the rent money, and Mitrevski would take any income from the used car dealership.

{¶ 5} Around October 2010, Mitrevski claimed that Velio ordered him to leave the property. As a result, Mitrevski took some of AM and JV's cars from the property to a new lot across the street at 1872 South Pearl Street and began operating a used car dealership as a separate, new business from AM and JV. According to Mitrevski, Velio agreed to split with Mitrevski the rent he received from the property because Mitrevski had moved. Thereafter, Mitrevski attempted to sell the property to Spartak Selimaj ("Selimaj"). Mitrevski stated that Selimaj paid both him and Velio earnest money as a down payment for the property, but canceled the deal after discovering the property had been transferred from AM and JV to MyFlori, a company owned by Velio. Mitrevski testified he was shocked to discover that the property had been transferred to MyFlori.

{¶ 6} According to Velio, in 2010, Toty began renting part of the property for $1,500 per month, and later began paying $2,000 per month. Velio claimed that, in June 2010, Mitrevski bought a car for himself and told Velio to take the rent for himself. In February 2011, Velio confronted Mitrevski because he believed he was stealing from the business. According to Velio, Mitrevski told him to "[k]eep the property." (Tr. Vol. II at 279.)

{¶ 7} Velio stated that Toty, in March 2011, agreed to lease the property from Velio for a duration of three years for $2,500 per month, increasing 3 percent annually. Toty made payments under the lease directly to Velio. According to Velio, in March 2011, Mitrevski had "remove[d] himself completely from the property" and "was in [a] different property and business." (Tr. Vol. II at 216-17.) Velio did not share any of the rent he received under the lease with Mitrevski. Velio stated that, in April 2012, after the deal with Selimaj failed, he transferred the property to his real estate holding company, MyFlori.

{¶ 8} Selimaj testified that, in June 2011, Mitrevski approached him with an offer to sell the property. In January or February 2012, Selimaj paid earnest money as a down payment for the property, but stated the sale was delayed because there was a tenant occupying the property. In April 2012, Selimaj discovered the property had been transferred from AM and JV to another company and, as a result, demanded his earnest money back. Selimaj testified Mitrevski reacted with surprise when Selimaj informed him that the property had been transferred from AM and JV to another company. Selimaj ultimately received his earnest money back from both Mitrevski and Velio.

{¶ 9} On April 22, 2013, plaintiffs-appellees, Mitrevski and AM and JV (collectively "appellees"), filed a complaint in the trial court asserting the following three causes of action: quiet title against MyFlori, conversion against appellants, and conversion of rental income against appellants. On June 7, 2013, appellants filed an answer and counterclaim. Appellants made the following counterclaims: breach of contract, breach of fiduciary duty, fraud, conve rsion, negligent misrepresentation, and promissory estoppel. Appellants also sought punitive damages and a declaration that Velio was the sole member of AM and JV. On July 8, 2013, appellees filed an answer to appellants' counterclaims.

{¶ 10} On July 9, 2014, appellees filed a motion for partial summary judgment. On August 22, 2014, appellants filed a memorandum contra appellees' motion for partial summary judgment. On September 2, 2014, appellees filed a reply to appellants' memorandum contra appellees' motion for partial summary judgment. On September 5, 2014, the trial court issued an order referring the matter to a magistrate. On September 8, 2014, the magistrate filed a decision denying appellees' motion for partial summary judgment.

{¶ 11} On September 19, 2014, appellees filed an objection to the magistrate's decision. On October 30, 2014, appellants filed a reply to appellees' objection. On February 2, 2015, the trial court denied appellees' objection to the magistrate's decision and adopted such decision as its own.

{¶ 12} On February 9, 2015, the matter proceeded to a jury trial at which the magistrate presided. On February 17, 2015, the jury rendered the following verdict: (1) the property remained an asset of AM and JV, (2) rent in the amount of $110,727 which had been received by Velio should be returned to AM and JV, and (3) Velio was entitled to damages in the amount of $43,282.75 on the claims of conversion of property and breach of fiduciary duty with regard to Mitrevski's conversion of motor vehicles belonging to AM and JV. On February 18, 2015, the magistrate filed a decision following the jury trial.

{¶ 13} On September 4, 2015, appellants filed a motion for new trial or, in the alternative, a motion for additur and remittitur. On the same date, appellants filed a separate motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial. On October 16, 2015, appellees filed responses to appellants' September 4, 2015 motions. On November 6, 2015, appellants filed replies to appellees' October 16, 2015 responses. On December 23, 2015, the magistrate filed a decision denying appellants' September 4, 2015 motions.

{¶ 14} On March 1, 2016, appellants filed objections to the magistrate's February 18, 2015 decision following jury trial. On the same date, appellants separately filed objections to the magistrate's December 23, 2015 decision. On March 30, 2016, appellees filed responses to appellants' March 1, 2016 objections. On April 5, 2016, appellants filed replies to appellees' March 30, 2016 responses. On September 14, 2016, the trial court filed a decision and entry overruling appellants' objections to the magistrate's February 18, 2015 decision following jury trial and overruling appellants' objections to the magistrate's December 23, 2015 decision denying appellants' motions for new trial, motion for additur and remittitur, and motion for judgment notwithstanding the verdict.

II. Assignments of Error

{¶ 15} Appellants appeal and assign the following two assignments of error for our review:

I. The Trial Court Erred in Failing to Grant Defendant-Appellants' Motion for New Trial, or in the Alternative, Motion for Additur.
II. The Trial Court Erred in Failing to Grant Defendants' Motion for Remittitur.

III. Discussion

{¶ 16} In their two assignments of error, appellants argue the trial court erred by overruling their objections to the magistrate's decision denying their motion for new trial or, in the alternative, their motions for additur and remittitur.

A. Applicable Law

{¶ 17} Civ.R. 59 governs motions for a new trial. Pursuant to Civ.R. 59(A)(6), a trial court may order a new trial on all or part of the issues if "[t]he judgment is not sustained by the weight of the evidence." "When presented with a motion premised on Civ.R. 59(A)(6), a trial court must weigh the evidence and consider the credibility of the witnesses to determine whether the manifest weight of the evidence supports the judgment." Ellinger v. Ho , 10th Dist. No. 08AP-1079, 2010-Ohio-553, 2010 WL 596978, ¶ 61, citing Salvatore v. Findley , 10th Dist. No. 07AP-793, 2008-Ohio-3294, 2008 WL 2588547, ¶ 24. "Unlike directed verdicts and judgments notwithstanding the verdict, an order for a new trial does not dispose of litigation; instead, its purpose is to prevent ' "miscarriages of justice which sometimes occur at the hands of juries," ' by presenting the same matter to a new jury." Malone v. Courtyard by Marriott Ltd. Partnership , 74 Ohio St.3d 440, 448, 659 N.E.2d 1242 (1996), quoting Rohde v. Farmer , 23 Ohio St.2d 82, 93, 262 N.E.2d 685 (1970), quoting Holland v. Brown , 15 Utah 2d 422, 426, 394 P.2d 77 (1964).

B. Standard of Review

{¶ 18} Civ.R. 53 governs proceedings before a magistrate, including objections to a magistrate's decision. In ruling on objections to a magistrate's decision, the trial court must undertake an independent review of the matters objected to in order "to ascertain [whether] the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). In accordance with Civ.R. 53, a trial court reviews a magistrate's decision de novo. James v. My Cute Car, LLC , 10th Dist. No. 16AP-603, 2017-Ohio-1291, 2017 WL 1283502, ¶ 13. "The standard of review on appeal from a trial court judgment that adopts a magistrate's decision varies with the nature of the issues that were (1) preserved for review through objections before the trial court and (2) raised on appeal by assignment of error." In re Guardianship of Schwarzbach , 10th Dist. No. 16AP-670, 2017-Ohio-7299, 2017 WL 3601760, ¶ 14. We review the trial court's decision on a motion for new trial under Civ.R. 59(A)(6) for an abuse of discretion. Kenner v. Grant/Riverside Med. Care Found. , 2017-Ohio-1349, 88 N.E.3d 664, ¶ 23 ; Mannion v. Sandel , 91 Ohio St.3d 318, 321, 744 N.E.2d 759 (2001), quoting Rohde at paragraph one of the syllabus; Ellinger at ¶ 61, citing Harris v. Mt. Sinai Med. Ctr. , 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶ 39. An abuse of discretion occurs when a court's judgment is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 19} In the context of a motion for new trial, "the abuse of discretion standard requires a reviewing court to 'view the evidence favorably to the trial court's action rather than to the original jury's verdict.' " Malone at 448, 659 N.E.2d 1242, quoting Rohde at 94, 262 N.E.2d 685. "This deference to a trial court's grant of a new trial stems in part from the recognition that the trial judge is better situated than a reviewing court to pass on questions of witness credibility and the 'surrounding circumstances and atmosphere of the trial.' " Id. , quoting Rohde at 94, 262 N.E.2d 685.

C. Motion for New Trial or Additur

{¶ 20} In their first assignment of error, appellants assert the trial court erred in denying their motion for new trial or, in the alternative, motion for additur because the jury's award of $40,000 to Velio as a result of Mitrevski's conversion of business assets was inadequate.

{¶ 21} "In Ohio, additur is only available where agreed to by the defendant as an alternative to the trial court's granting a plaintiff's motion for a new trial." Fares v. Scheussler , 10th Dist. No. 93APE10-1373, 1994 WL 110716 (Mar. 31, 1994), citing McCormac, Ohio Civil Rules of Practice , Section 13.30 at 383 (2d Ed.1992). See Allen v. Znidarsic Bros., Inc. , 11th Dist. No. 99-L-088, 2001 WL 20726 (Dec. 29, 2000), citing Midwest Elastomers, Inc. v. Piqua Steel Co. , 3d Dist. No. 2-82-15 (Aug. 16, 1983). Therefore, in order to obtain additur, a plaintiff must first demonstrate entitlement to a new trial under Civ.R. 59. Fares .

{¶ 22} "Generally, a new trial should be granted pursuant to Civ.R. 59(A)(6) where it appears that the jury awarded inadequate damages because it failed to consider an element of damages established by uncontroverted expert testimony." Dillon v. Bundy , 72 Ohio App.3d 767, 773, 596 N.E.2d 500 (10th Dist.1991). See Fares ; Baum v. Augenstein , 10 Ohio App.3d 106, 108, 460 N.E.2d 701 (10th Dist.1983) ("A new trial is warranted on the ground of inadequacy of damages where it appears that the jury failed to consider some elements of damages."). See Frazier v. Swierkos , 183 Ohio App.3d 77, 2009-Ohio-3353, 915 N.E.2d 724, ¶ 22 (7th Dist.), quoting Bailey v. Allberry , 88 Ohio App.3d 432, 435, 624 N.E.2d 279 (2d Dist.1993) (" '[I]n order to set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff's claim.' "). (Emphasis omitted.) "However, if the verdict is supported by substantial competent, credible evidence, a trial court abuses its discretion in granting a new trial based upon the weight of the evidence." Dillon at 773-74, 596 N.E.2d 500, citing Hancock v. Norfolk & Western Ry. Co. , 39 Ohio App.3d 77, 81, 529 N.E.2d 937 (8th Dist.1987).

{¶ 23} Appellants make two arguments in support of their contention that the jury's award of damages for Mitrevski's conversion was inadequate. First, appellants argue that Velio is entitled to half of AM and JV's ending inventory for 2010. Specifically, appellants contend that:

Because jury interrogatories Nos. 9-15 specifically found that Velio was deprived of his ownership interest in the vehicles, funds, and monies held by [AM and JV] after August or September of 2010, Velio should be entitled to one half of the $80,000 on [AM and JV's] 2010 [tax] return, which is a reflection of the assets of that business at the end of 2010. Thus, the jury should have awarded Velio one half of these assets i.e. $40,000.

(Appellants' Brief at 20-21.) Consistent with appellants' contention, the jury awarded Velio $40,000 in damages for his counterclaim for conversion.

{¶ 24} Second, appellants argue that "Velio is entitled to $78,004.60" because "[e]xhibits introduced at trial prove that between August of 2010 and March of 2011, Mitrevski sold $156,009.21 worth of vehicles back to auto auctioneers, under the dealer license used for [AM and JV], with the proceeds going directly to [Mitrevski's new dealership's bank] accounts, which Velio had no knowledge of." (Appellants' Brief at 24; 21.) The exhibits to which appellants point were admitted as evidence at trial and considered by the trial court in reviewing appellants' motion for new trial. "[A] jury is entitled to 'believe all, part or none of a witness's testimony.' " State v. Simmons , 2017-Ohio-1348, 88 N.E.3d 651, ¶ 35 (10th Dist.), quoting State v. Raver , 10th Dist. No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Even if the jury gave weight to appellants' exhibits, they need not have concluded that Velio had an ownership interest in the monies deposited in Mitrevski's new bank accounts. Fares (finding that even though testimony "went unchallenged by defendant, the jury was still entitled to disbelieve the testimony and award no money damages"). Therefore, we cannot find the trial court erred in denying appellants' motion for new trial or, in the alternative, motion for additur.

{¶ 25} Accordingly, we overrule appellants' first assignment of error.

D. Remittitur

{¶ 26} In their second assignment of error, appellants assert the trial court erred in denying their motion for remittitur because the evidence at trial demonstrated that appellants paid taxes on the property from 2011 through trial in the amount of $16,872.73, which appellants assert "should have been deducted from the total of $110,727.00 that [AM and JV] was awarded against Velio for conversion of rental income." (Appellants' Brief at 25.)

{¶ 27} Although not expressly provided in the Ohio Civil Rules, "[a] court has the inherent authority to remit an excessive award, assuming it is not tainted with passion or prejudice, to an amount supported by the weight of the evidence." Wightman v. Consol. Rail Corp. , 86 Ohio St.3d 431, 444, 715 N.E.2d 546 (1999). See also Moskovitz v. Mt. Sinai Med. Ctr. , 69 Ohio St.3d 638, 653, 635 N.E.2d 331 (1994), fn. 6. The following four factors must be present for a trial court to order remittitur: " '(1) unliquidated damages are assessed by a jury, (2) the verdict is not influenced by passion or prejudice, (3) the award is excessive, and (4) the plaintiff agrees to the reduction in damages.' " (Emphasis omitted.) Harris at ¶ 39, quoting Wightman at 444, 715 N.E.2d 546. "The power to order a remittitur is not limited to trial courts." Dardinger v. Anthem Blue Cross & Blue Shield , 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121, ¶ 184, citing Shaffer v. Maier , 68 Ohio St.3d 416, 627 N.E.2d 986 (1994). See Chester Park Co. v. Schulte , 120 Ohio St. 273, 166 N.E. 186 (1929), paragraph five of the syllabus. "Thus, an appellate court may order a remittitur to the amount warranted by the evidence if it determines that a damages award is not supported by the evidence." Wells v. C.J. Mahan Constr. Co. , 10th Dist. No. 05AP-180, 2006-Ohio-1831, 2006 WL 951444, ¶ 39.

{¶ 28} Here, Mitrevski testified he paid property taxes while at the property, but did not after he left. Velio testified he began paying property taxes on the property in question in the second half of 2011. Appellants submitted an exhibit showing property taxes paid from June 2011 through June 2014 in the amount of $16,872.73.

{¶ 29} Appellants contend the above establishes Velio paid the property taxes for the period in question, and that it was manifest error for the jury to have failed to reduce the award of damages for conversion of rental income by the amount of taxes paid. Although Mitrevski stated he did not pay the property taxes after he vacated the property, the jury need not have accepted Velio's testimony that he, in fact, paid the property taxes. At trial, and on appeal, appellees argued the testimony and records were insufficient to establish that Velio paid the taxes.

{¶ 30} Furthermore, at trial, Velio stated that he attempted to evict Toty because it was "behind on the rent, not paying property taxes." (Tr. Vol. II at 286.) This testimony raises the question as to whether Velio or Toty was responsible for paying the property taxes during the period in question. Although Velio points to auditor's records showing the property taxes were paid, he does not point to his own records showing payments matching the amounts in question. As a result, we find that the jury was not required to believe Velio's testimony that he paid property taxes in the claimed amount and, therefore, cannot find that the trial court erred in denying appellants' motion for remittitur.

{¶ 31} Accordingly, appellants' second assignment of error is overruled.

IV. Conclusion

{¶ 32} Having overruled appellants' first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN, P.J., and TYACK, J., concur.


source: Caselaw Access Project

author: ZIMMERMAN, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Dennis WRONA, Defendant-Appellant.
    NO. 1-17-22
    Court of Appeals of Ohio, Third District, Allen County.
    Date of Decision: February 20, 2018
    Kenneth J. Rexford, Lima, for Appellant
    Jana E. Emerick, Lima, for Appellee
   ZIMMERMAN, J.

{¶ 1} Defendant-Appellant, Dennis Wrona ("Appellant"), brings this appeal from the Allen County Common Pleas Court, convicting him of one count of assault and sentencing him to two years Community Control. On appeal, Appellant asserts that: 1) the trial court erred by depriving Appellant of his right to trial by jury by refusing a requested instruction to the jury as to self-defense; 2) the Appellant's jury waiver was not made voluntarily; and 3) the Appellant's conviction for assault was against the manifest weight of the evidence. For the reasons that follow, we affirm the ruling of the Allen County Court of Common Pleas.

Factual Background

{¶ 2} At approximately 5 p.m. on May 29, 2016, employees working at a Bob Evans restaurant on North Cable Road in Lima, Ohio noticed a man "passed out" and lying face down in the grass outside of the restaurant. (Trial, 02/27/2017 Tr. at 28). When attending to the man, who was later identified as Appellant, restaurant employees noted that the man was responsive. (Id. at 29). The employees assisted Appellant into the restaurant, gave him a glass of water, and called 9-1-1 for assistance. (Id. ). The Allen County's Sheriff's Office (the department that received the 9-1-1 call) contacted the Lima City Police Department, and dispatched the Lima Allen County Paramedics ("LACP") to the scene to provide Appellant medical assistance. (Id. at 17; 22). Jennifer Pierce ("Pierce") and Linda Bishop ("Bishop"), were the EMTs dispatched to Bob Evans. (Id. at 59).

{¶ 3} Upon arriving at Bob Evans, Pierce and Bishop met with the Appellant. (Id. at 64). Appellant told the EMTs that the person who had "passed out" in the grass had already left the restaurant. (Id. ). However, after talking to Bob Evans employees, Pierce and Bishop determined that the Appellant was the individual who had "passed out" outside of the restaurant. (Id. ). Nevertheless, Appellant refused treatment, but did agree to being "checked out" in the ambulance as long as its doors remained opened and that he would not be transported to the hospital. (Id. at 66). While reports differ as to whether Appellant stepped up into or fell into the back of the ambulance, it is not disputed that once inside the ambulance a physical altercation occurred between the Appellant and Pierce. (Id. at 76). As a result of the altercation, Pierce "flew" out of the back of the ambulance, landing on her backside. (Id. at 76-77).

{¶ 4} After being thrown from the ambulance, Pierce radioed for police assistance, then returned to the ambulance to assist Bishop in restraining Appellant until law enforcement arrived. (Id. at 78). One of the responding officers, Steven Torres ("Torres") of the Lima City Police Department, reported that the Appellant's eyes were bloodshot and glassy. (Id. at 156). Torres also reported that the Appellant had an odor of alcohol coming from his breath and appeared to have urinated on himself. (Id. ). Torres reported that based on his observations (of Appellant) and experience, he believed Appellant was intoxicated. (Id. ). Appellant denied being intoxicated, and no breath or blood alcohol testing was performed by law enforcement to determine whether or not Appellant was under the influence of alcohol. (Trial, 02/28/2017 Tr. at 186). However, Torres arrested the Appellant for assaulting Pierce and transported him to the Lima police station without further incident. (Trial, 02/27/2017 Tr. at 171-72).

{¶ 5} After the altercation with the Appellant, Pierce sought medical treatment for her injuries. (Id. at 91). Pierce testified that as a result of being kicked out of the back of the ambulance, she suffered severe pain in her right hip/pelvis region. (Id. at 92). Pierce also testified that Appellant had bit her and attempted to light her arm hairs on fire with a lighter that Appellant had in his shirt pocket. (Id. at 81). Pierce's injuries were documented at trial by medical records from St. Rita's Medical Center and photographs taken by police. (State's Ex. Nos. 5-18).

Procedural Background

{¶ 6} On July 14, 2016, the Allen County Grand Jury indicted Appellant on one count of Assault, in violation of R.C. 2903.13(A) and R.C. 2903.13(C)(5). (Doc. No. 4). Because the victim of the assault, Pierce, was performing an emergency medical service in the course of her official duties, the charge against the Appellant was elevated to a felony of the fourth degree. (Id. ).

{¶ 7} After several continuances, a jury trial was scheduled in the trial court for February 27, 2017. (Doc. No. 24). However, Appellant waived his right to a jury the morning of trial after an in-chamber meeting occurred between the trial judge and the attorneys involved in the case. (Doc. No. 56). Appellant's jury waiver was in writing and was signed (by Appellant) in open court and on the record. (Id. ). After the waiver was executed, a bench trial commenced. During the bench trial, Appellant's counsel's office faxed to the trial court a "Pretrial Statement Re: Self Defense and Refused Medical Treatment." (Doc. No. 51). At the conclusion of the bench trial on February 28, 2017, the trial court found Appellant guilty of assault. (Doc. No. 57). Thereafter, Appellant was sentenced to two years of community control on April 20, 2017. (Doc. No. 60). It is from this judgment Appellant appeals, presenting the following assignments of error for our review:

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED AND DEPRIVED MR. WRONA OF HIS RIGHT TO TRIAL BY JURY BY REFUSING A REQUESTED INSTRUCTION TO THE JURY AS TO SELF-DEFENSE.

ASSIGNMENT OF ERROR NO. II

THE JURY WAIVER WAS NOT VOLUNTARY.

ASSIGNMENT OF ERROR NO. III

THE CONVICTION FOR ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 8} On appeal, Appellant asserts: 1) that the trial court erred by depriving Appellant of his right to a trial by jury and by refusing the requested self-defense jury instruction; 2) that the Appellant involuntarily executed his jury waiver, and 3) that Appellant's conviction for assault was against the manifest weight of the evidence. For the reasons that follow, we affirm the decision of the trial court.

Appellant's First and Second Assignments of Error

{¶ 9} As both the first and second assignments of error involve Appellant's right to a jury trial and the voluntariness of his jury waiver, we will discuss these assignments together.

Standard of Review

{¶ 10} "A jury waiver must be voluntary, knowing, and intelligent." State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 45 citing State v. Ruppert, 54 Ohio St.2d 263, 271, 375 N.E.2d 1250 (1978). "Waiver may not be presumed from a silent record." Id. citing State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 52. "However, if the record shows a jury waiver, the verdict will not be set aside except on a plain showing that the waiver was not freely and intelligently made." Id. "Moreover, a written waiver is presumptively voluntary, knowing, and intelligent." Id.

Trial Court's Conversation with Appellant Regarding Waiver

{¶ 11} At Appellant's jury waiver hearing, the following exchange occurred between Appellant and the trial court:

Trial Court: Mr. Wrona, you've heard what your lawyer said about waiving your right to a jury trial?
Appellant: I did, your honor.
Trial Court: Okay. Thank you. Now, Mr. Wrona, I want to make sure you understand a bit of detail relating to that. First of all, you have a constitutional right to a trial by jury; you understand that?
Appellant: Yes, I do.
Trial Court: Do you understand also that's guaranteed to you by both the constitution of the United States of America and the Constitution of the State of Ohio?
Appellant: Yes, sir.
Trial Court: Do you further understand that in accordance with that constitutional right you have certain protections relating to the selection of the jury, for example. First of all, your lawyer gets to question the proposed jury or the potential jurors to see if he can garner as best as possible a fair and impartial jury, keeping your interest in mind; do you understand that?
Appellant: I do.
Trial Court: Do you-do you understand you'll be giving that up if you waive your right to a jury?
Appellant: Yes, I do your honor.
Trial Court: Do you also understand that if there are indications that a juror may have a preconceived idea of the case or have an indication that, for example, he wouldn't follow the law or follow what the rules of the court are your lawyer could excuse him for what's called cause, which means there's a reason, a legal reason, to excuse that juror, do you understand that?
Appellant: Yes, I do.
Trial Court: You are also giving up your right to what's called peremptory challenges. Those are the rights that you have to exclude four potential jurors simply for any reason you want that may not be a legal reason. It could be a gut, if you will, or simply a feeling that they're not going to be what you want-
Appellant: I understand.
Trial Court: -Do you understand that?
Appellant: Yes, I do. I understand.
Trial Court: All right. Now, you do understand then that you would have an active participation [sic] of your lawyer in selecting a jury and that that will not occur if this jury waiver is signed and you acknowledge to me in open court today that you're waiving the jury.
Appellant: Yes, sir.
Trial Court: Do you understand that?
Appellant: Yes, I do.
Trial Court: Do you have any questions about what I just told you?
Appellant: No, your honor, I don't.
Trial Court: All right. This is such an important right that you must sign in open court a waiver of your right to a jury and also it gives you an opportunity to ask me or your lawyer any questions about the circumstances associated with waiving the jury that I talked to you about. I will be the one that will make the decision in short; do you understand that?
Appellant: Yes, I do.
Trial Court: Okay. Now, I will say this, and I'm not trying to talk you into anything. There is an interesting issue in this case and more flexibility would be available if you go ahead and waive the right to a jury because, for example, I can ask the lawyers after I hear the evidence to brief the case and then make a decision after I study the legal aspects of it. If there were a jury trial we would not be in a position to be able to do that inasmuch as they'd be the finders of fact based on the law; do you understand that?
Appellant: Yes, I do, your honor.
Trial Court: Okay. If you wish to waive your right to a jury you're going to need to sign the waiver of jury form that's there in front of you. Again, if you have any question about what I said let me know.
Appellant: Thank you, your honor.
Trial Court: Thank you.
Trial Counsel: May I approach, your honor?
Trial Court: You may. Mr. Wrona, is this your signature on the form, sir?
Appellant: Yes, it is, your honor.
Trial Court: Do you have any questions about the form?
Appellant: Not at this time.
Trial Court: All right. The court will-and this is where you want to go today, what you want to do; is that correct?
Appellant: That's correct, your honor.
Trial Court: All right. The court will indicate the Defendant, Dennis J. Wrona, has been advised of his rights to a jury and the circumstances associated with that waiver as it relates to the selection of jury. The court will indicate that he has waived his right to a jury.

(Jury Waiver Hearing, 2/27/2017 Tr. at 6-11).

Analysis

{¶ 12} Accordingly, we will analyze the voluntary, knowing, and intelligent nature of Appellant's jury waiver, in turn.

Voluntariness

{¶ 13} A review of the record demonstrates that Appellant's jury waiver was voluntary. Specifically, Appellant executed a written jury waiver in open court after receiving an explanation of his constitutional rights by the trial court. (Doc. No. 56). Appellant's jury waiver states, in part:

I, DENNIS J. WRONA, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury , and elect to be tried by a Judge of the Court as to the charges contained in the Indictment. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.

(Emphasis added). (Id. ).

{¶ 14} Additionally, when the trial court inquired of Appellant if he had heard the representations of counsel (regarding whether the Appellant and counsel had discussed waiving a trial by jury) Appellant answered in the affirmative. As such, and relative to the issue of voluntariness, we determine that the advice of counsel is a factor supporting a finding of voluntariness in this case. See, State v. Bays, 87 Ohio St.3d 15, 19, 1999-Ohio-216, 716 N.E.2d 1126.

{¶ 15} In our review, we find nothing in the record to demonstrate that Appellant's jury waiver was made involuntarily. Given the on-the-record exchange between the Appellant and the trial court; Appellant's written waiver of a jury; and Appellant's affirmance (that) he discussed his waiver with counsel, we find Appellant voluntarily waived his right to a jury.

Knowing & Intelligent Waiver

{¶ 16} "Because 'a waiver is the intentional relinquishment of a known right or privilege * * *, a defendant must have some knowledge of the nature of the jury trial right to make a valid waiver.' " Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 52 quoting Bays, 87 Ohio St.3d 15, 19-20, 1999-Ohio-216, 716 N.E.2d 1126. "However, 'there is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial.' " Id. quoting State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464 (1990), paragraph one of the syllabus. " 'The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel.' " Id. quoting Jells, 53 Ohio St.3d 22, 26, 559 N.E.2d 464 (1990).

{¶ 17} In our review of the record, we find that the trial court sufficiently explained the jury process to Appellant. Specifically, during the trial court's colloquy with the Appellant, the trial court repeatedly asked Appellant if he understood his right to a jury and the jury selection process. And, in response, Appellant consistently answered the trial court in the affirmative. At no time during the waiver hearing does the record reflect any apprehension or confusion by the Appellant as to waiving a jury trial. As such, " '[a] defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and * * * a judge alone will decide guilt or innocence should he waive his jury trial right.' " Id. at ¶ 53 quoting United States v. Martin, 704 F.2d 267, 273 (6th Cir.1983). Accordingly, we find that Appellant has failed to demonstrate a plain showing that his jury waiver was not freely, knowingly, and intelligently made.

Trial Court's refusal of jury instruction

{¶ 18} Appellant argues that his jury waiver was not voluntarily made because the trial court refused to provide the requested jury instruction of self-defense. This argument is without merit. We note that the record demonstrates that Appellant never requested the trial court to instruct a jury on the defense of self-defense. Appellant's trial counsel admits as much on the record, informing the trial court that:

Trial Counsel: Your honor, in preparing, in reviewing the court's proposed jury instructions over the weekend * * *. We-I realized that there was a lack at that point of an instruction on self-defense, which is understandable because very frequently the self-defense instruction is discussed at the point where the state and the defense have rested because of the burden of the defense to establish at least some sort of prima facie case to argue self-defense. In preparing that myself I was somewhat shocked that the Ohio Jury Instructions do not seem to have any reference to the constitutional right of an individual to refuse medical treatment. I have a particular perspective that is not necessarily universally shared within the courtroom here that that instruction is relevant to self-defense in some cases and, in fact, found some ca-very limited case law authority where this may be an issue. As a result, the defense brought forward informally in chambers, not on the record, some discussions regarding proposed jury instructions * * *. I have relayed to Mr. Wrona my particular assessment of predicted likelihoods of whether we would or would not get an instruction, as well as the potential differences of how a jury versus the court would view certain legal questions, that sort of thing. And in light of that conversation and tactical choices Mr. Wrona and I are now of the opinion that this case would best be handled by presenting the facts to your honor.

(Jury Waiver Hearing, 02/27/2017 Tr. at 2-4).

{¶ 19} Moreover, as the record clearly demonstrates, Appellant waived his right to a jury trial. Thus, Appellant's argument concerning the need for a jury trial instruction on self-defense, under the facts presented, is moot. Nevertheless, the record does demonstrate that the trial court did consider self-defense but specifically found that Appellant failed to meet his burden and prove self-defense in this case . (Trial, 2/28/2017 Tr. at 245).

{¶ 20} Accordingly, we overrule Appellant's first and second assignments of error.

Appellant's Third Assignment of Error

{¶ 21} In his third assignment of error, Appellant argues that the conviction for assault was against the manifest weight of the evidence. For the reasons that follow, we disagree.

Standard of Review

{¶ 22} "[I]n determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, '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. White, 3rd Dist. Seneca No. 13-16-21, 2017-Ohio-1488, 2017 WL 1436371, ¶ 11 quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. "A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. Id. citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). "When applying the manifest weight standard, 'only in exceptional cases, where the evidence "weighs heavily against the conviction," should an appellate court overturn the trial court's judgment.' " Id. quoting State v. Haller, 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9.

Analysis

{¶ 23} In the case before us, the evidence offered by the prosecution against Appellant included the testimony of Pierce, Bishop, and Torres. Pierce testified that Appellant kicked her out of the back of the ambulance, causing her to land on her backside. Pierce also testified that Appellant hit her in the head with her mic, bit her on her left forearm, and tried to light her arm hairs on fire with his cigarette lighter. Pierce's testimony was corroborated by Bishop, through the photographs of her injuries, and medical records from St. Rita's Medical Center (that verified Pierce sought medical treatment after the assault). (State's Ex. Nos. 5-18).

{¶ 24} Bishop testified that when Pierce attempted to take Appellant's cigarette from him, Appellant became combative and kicked Pierce. Bishop further testified that she observed Appellant bite Pierce.

{¶ 25} Torres testified that he was dispatched to Bob Evans on May 29, 2016 to assist paramedics. Torres further testified that upon his arrival to the scene he observed Appellant with bloodshot, glassy eyes and identified an odor of alcohol coming from his (Appellant's) breath. Torres opined that Appellant was intoxicated. While Torres did not observe the incident between Pierce and the Appellant, Torres assisted with taking photographs of Pierce at the scene and collecting two cigarette lighters from the ambulance.

{¶ 26} Another prosecution witness, Bob Evans employee Stacy Newland ("Newland"), testified that she called 911 after she observed a man (Appellant) laying in the grass. Newland testified that after the paramedics arrived, she saw the ambulance "shaking" and then saw a paramedic (Pierce) "fly" out the back of the ambulance, landing on her backside. Newland also testified that she observed Appellant being restrained and noticed that there were cigarettes and a lighter on the floor of the ambulance.

{¶ 27} In presenting his defense, Appellant testified that once in the ambulance, the paramedics closed its doors against his wishes. As a result of closing the doors, Appellant tried to leave the ambulance. And while attempting to leave, Pierce pushed him, which resulted in Appellant falling backwards onto the floor of the ambulance. Appellant further testified that while he was on the floor of the ambulance, Pierce came over to hold him down, at which point he began to "push" and "flail" in an attempt to get her off of him. Appellant testified that he pushed Pierce with such force that when she hit the closed ambulance door, it opened, and Pierce went through it, landing on her backside on the pavement.

{¶ 28} In this matter, the trial court, as the trier of fact, was in the best position to observe the demeanor of the witnesses and to hear their testimony. It was within the purview of the trial court to determine that the testimonies of Pierce, Bishop, and Torres were more credible than the testimony of the Appellant. Thus, because the State produced competent and credible evidence as to all the elements of assault, and the trial court was in the best position to assess the credibility of each witness, we cannot say that the guilty verdict of the trial court was against the manifest weight of the evidence. Moreover, the trial court, while taking into account the witnesses' manner and demeanor, had the prerogative to weigh the credibility and the weight of testimony in light of Appellant avoiding any jail time or possible reductions in his prison time as a result of testifying. See, State v. Kelly, 10th Dist. Franklin No. 02AP-195, 2002-Ohio-5797, 2002 WL 31389009, ¶ 18. Accordingly, Appellant's third assignment of error is overruled.

{¶ 29} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we overrule Appellant's first, second, and third assignments of error and affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

      While Appellant inconsistently labels his second assignment of error as his third assignment of error in his brief, we address the second assignment of error in accordance with its logical numerical designation.

      While Appellant refers to his "Pretrial Statement Re: Self Defense and Refused Medical Treatment" in support of his self-defense jury instruction request, we note that the "Pretrial Statement" was filed after Appellant's bench trial had commenced, and furthermore, refers to discussions that occurred in-chambers and off the record. (See Doc. No. 51). Accordingly, without a record to review, we are unpersuaded by Appellant's characterization of his request.


author: SEAN C. GALLAGHER, J.:

text:
    U.S. BANK NATIONAL ASSOCIATION as Trustee, Plaintiff-Appellee v. Mary Claire FRANKO, et al., Defendants-Appellants
    No. 105832
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 22, 2018
    William C. Behrens, Marc E. Dann, The Dann Law Firm Co., L.P.A., P.O. Box 6031040, Cleveland, Ohio 44103, Thomas J. Kraus, 1 Berea Commons, Suite 216, Berea, Ohio 44017, ATTORNEYS FOR APPELLANTS
    Justin M. Ritch, Matthew J. Richardson, Manley, Deas & Kochalski, L.L.C., P.O. Box 165028, Columbus, Ohio 43216, Tyler K. Ibom, David A. Wallace, Carpenter, Lipps & Leland, L.L.P., 280 Plaza, Suite 1300, 280 North High Street, Columbus, Ohio 43215, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Mary Claire Franko and Charles Stimac, Jr. ("mortgagors") appeal the decree of foreclosure on the property at 33400 Pinetree Road, Pepper Pike, Ohio. We affirm.

{¶ 2} Franko executed a promissory note for $300,000, secured by a mortgage signed by both Franko and Stimac in 2005. The complete mortgage instrument named RBC Mortgage Company as the lender and Mortgage Electronic Registration Systems, Inc. ("MERS") as the mortgagee and as nominee for RBC Mortgage Company and its successor and assigns. The loan was immediately securitized and placed into trust, the Washington Mutual Mortgage Pass-Through Certificates WMALT Series 2005-4 Trust ("trust"). LaSalle Bank National Association was the initial trustee, and Washington Mutual Bank was the servicer on the loan. Washington Mutual Bank began collecting the monthly payments.

{¶ 3} Washington Mutual Bank went into federal receivership during the financial crisis of the early 2000s. JPMorgan Chase purchased and otherwise assumed some assets of Washington Mutual Bank through the receivership, which at the time made JPMorgan Chase the new servicer of the mortgage. MERS assigned the mortgage to Washington Mutual Bank in 2007. That assignment was duly recorded.

{¶ 4} Washington Mutual Bank, through the receiver, then assigned the mortgage to Bank of America, National Association in 2009, which was the successor trustee to LaSalle Bank through merger. Approximately three years later, the receiver of Washington Mutual Bank issued a corrective assignment, assigning the mortgage to U.S. Bank. The corrective assignment was recorded and replaced the 2009 assignment. U.S. Bank was the successor trustee to Bank of America by sale. Although the mortgage was assigned several times and there were multiple servicers of the debt, the trust remained as the holder of the note.

{¶ 5} The mortgagors originally defaulted sometime in 2007. By the time U.S.

Bank filed the foreclosure action in 2012, there had been three earlier actions on behalf of the trust seeking foreclosure-Washington Mutual Bank in 2007 and Bank of America in 2009 and 2010.

{¶ 6} In the latest action, U.S. Bank indicated that the trust was in possession of the promissory note, but the note could not be located. U.S. Bank proceeded to enforce the note under R.C. 1303.38, which provides that a person not in possession of an instrument is entitled to enforce the instrument if (1) that person possessed the instrument at the time the loss of possession occurred, or if ownership of the instrument was acquired from the person who was entitled to enforce the instrument when the loss of possession occurred; (2) the loss of possession was not the result of a transfer or lawful seizure; and (3) the person seeking enforcement cannot reasonably obtain possession of the instrument.

{¶ 7} The trial court granted summary judgment in May 2016 and indicated the court's magistrate would issue a decision "making specific findings as to the rights and liabilities of the parties." Thus, the only issue before the magistrate was limited: the magistrate was not resolving the motion for summary judgment in its entirety. The magistrate concluded, in pertinent part, (1) that U.S. Bank was the real party in interest when the complaint was filed and maintained standing throughout the proceedings; (2) that $292,312.31 plus interest at 6 percent from April 1, 2007, was due as a secured sum and owed by Franko; and (3) that the mortgagors jointly guaranteed the outstanding debt with the property located at 33400 Pinetree Road, Pepper Pike, Ohio.

{¶ 8} The mortgagors objected to the magistrate's decision, asserting the following errors: (1) the magistrate failed to consider the defendants' submissions or pending defenses; (2) the magistrate erred in finding that U.S. Bank had standing to seek foreclosure based on the note and mortgage; (3) the magistrate erroneously applied R.C. 1303.38, dealing with actions upon lost notes; (4) that U.S. Bank failed to prove a defect-free chain of title on the note and mortgage; and (5) the magistrate's decision relied on inadmissible evidence. The trial court overruled the objections, and upon the decision of the magistrate, the evidence admitted at the hearing, and the motions and pleadings, summary judgment was granted in favor of U.S. Bank upon the trial court's conclusion that reasonable minds could come to one conclusion based on the undisputed evidence.

{¶ 9} In the first assignment of error, the mortgagors claim that the trial court's decision was devoid of "sufficiently detailed reasoning to permit a meaningful appellate review."

{¶ 10} Appellate review of summary judgment is de novo, governed by the standard set forth in Civ.R. 56. Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. De novo appellate review means that a court of appeals independently reviews the record and affords no deference to a trial court's decision. BP Communications Alaska, Inc. v. Cent. Collection Agency , 136 Ohio App.3d 807, 812, 737 N.E.2d 1050 (8th Dist.2000). As a result, the trial court's reasoning is irrelevant to our review and the first assignment of error is overruled.

{¶ 11} In the second and fourth assignments of error, the mortgagors claim there are genuine issues of material fact precluding summary judgment under Civ.R. 56. Specifically, the mortgagors contend that in earlier foreclosure actions the note bore an allonge that is not present in the current action and that Federal National Mortgage Association ("Fannie Mae") was assigned the mortgage before the mortgage was assigned to U.S. Bank by another financial institution.

{¶ 12} Summary judgment may be granted if there is no genuine issue of material fact; the moving party is entitled to judgment as a matter of law; and viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Marusa v. Erie Ins. Co. , 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7. In a foreclosure action, the moving party must present "evidentiary quality materials" establishing (1) the plaintiff is the holder of the note and mortgage or is a party entitled to enforce the instrument; (2) if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due. HSBC Bank USA, N.A. v. Surrarrer , 8th Dist. Cuyahoga No. 100039, 2013-Ohio-5594, 2013 WL 6730962, ¶ 16, citing United States Bank, N.A. v. Adams , 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, 2012 WL 6738296, ¶ 10.

{¶ 13} In this case, the mortgagors contend that either the missing allonge was a material alteration precluding U.S. Bank from enforcing the note or that a genuine issue of material fact on the chain of assignments existed, either of which precludes summary judgment. Neither claim has merit.

{¶ 14} In opposition to the motion for summary judgment, the mortgagors attached an affidavit prepared by Teri L. Petit for an earlier foreclosure action. She opined, based on publicly available documents, that Washington Mutual Bank assigned the mortgage to Fannie Mae before JPMorgan Chase was assigned the mortgage. According to Petit, JPMorgan Chase and their attorneys attempted to use "this court" to defraud the mortgagors. In support of her affidavit, Petit relied on an unauthenticated printout in which Fannie Mae was listed as the investor for record bearing the identifier 1000589-0010210230-8 issued on March 22, 2005. The servicer of the note was identified as JPMorgan Chase Bank NA (WAMU). According to Petit, this demonstrated that JPMorgan Chase did not have an agency relationship with Fannie Mae and, therefore, that the document U.S. Bank submitted demonstrating the assignment of the mortgage from JPMorgan Chase was a "forgery" and the law firm that filed the document in a court proceeding was in "contempt of court."

{¶ 15} Petit then concludes that because the mortgage was assigned to Fannie Mae, Fannie Mae was the true holder of the note. Petit's conclusion is legally erroneous even if Petit was qualified to render a legal opinion in this matter. In Ohio, it has been a long-standing maxim that the mortgage follows the note: " 'the negotiation of a note operates as an equitable assignment of the mortgage, even though the mortgage is not assigned or delivered.' " HSBC Bank USA, N.A. v. Thompson , 2d Dist. Montgomery No. 23761, 2010-Ohio-4158, 2010 WL 3451130, ¶ 80, quoting U.S. Bank N.A. v. Marcino , 181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032, ¶ 52 (7th Dist.).

{¶ 16} It is apparent that the mortgagors are confusing the distinction between the note and the mortgage in an attempt to create a genuine issue of material fact. "An action at law on a promissory note to collect a mortgage debt is separate and distinct from an action in equity to enforce the mortgage lien on the property."

Deutsche Bank Natl. Trust Co. v. Holden , 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, ¶ 35. "The person entitled to enforce the note pursuant to R.C. 1303.31 has standing to seek a personal judgment against the promisor on that obligation, while the mortgagee or its successor and assign has standing to foreclose on the mortgage." Id.

{¶ 17} In the appellate briefing, the mortgagors interchangeably use the terms "note" and "mortgage" when discussing any assignments. From the record presented, however, the trust was the holder of the note beginning in 2005 despite the assignments of the mortgage, which ultimately ended up with U.S. Bank as trustee of the trust. Thus, in claiming that Fannie Mae was assigned the mortgage, the mortgagors are attempting to challenge the chain of assignments as it relates to the mortgage.

{¶ 18} The mortgagors failed to demonstrate that the unauthenticated printout demonstrated an assignment of the mortgage from Washington Mutual Bank to Fannie Mae. Even if we considered the unauthenticated document, the MERS "system report" contains no identifying information relating to the mortgage at issue, nor does it contain any date upon which conclusions can be drawn. Nevertheless, in Ohio, expert opinions must be based on admissible evidence and cannot be based on unauthenticated documents. Evid.R. 703. The affidavit does not create a genuine issue of material fact bearing on the chain of assignments of the mortgage.

{¶ 19} More important, this court has held that a mortgagor lacks standing to challenge an assignment of a mortgage if the mortgagor is neither a party to nor a third-party beneficiary of the assignment. Bayview Loan Servicing, L.L.C. v. St. Cyr , 2017-Ohio-2758, 90 N.E.3d 321, ¶ 40, citing Bank of New York Mellon v. Froimson , 8th Dist. Cuyahoga No. 99443, 2013-Ohio-5574, 2013 WL 6730796, ¶ 17. This is so because even with allegations of an improper assignment, under Ohio law, the mortgage follows the note it secures. Id. , citing Deutsche Bank Natl. Trust Co. v. Najar , 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, 2013 WL 1791372, ¶ 65. It is undisputed that the trust held the note at all times irrespective of the mortgage assignments.

{¶ 20} With respect to the allonge that is purportedly missing, the removal of an allonge and the substitution of the endorsement on the note and mortgage do not alter the borrowers' obligation under the instruments. Bank of Am., N.A. v. Sweeney , 8th Dist. Cuyahoga No. 100154, 2014-Ohio-1241, 2014 WL 1340562, ¶ 22. Even if we accepted the mortgagors' allegations as true, the trial court did not err in granting summary judgment in favor of U.S. Bank. The mortgagors' obligations under the note were not affected by the alleged alteration.

{¶ 21} The mortgagors have not demonstrated any genuine issue of material fact. The second and fourth assignments of error are overruled.

{¶ 22} In the third assignment of error, the mortgagors claim the trial court erred in finding that U.S. Bank was entitled to enforce the lost note under R.C. 1303.38 because the verified statements presented on behalf of U.S. Bank were conclusory and made without reference to how the affiants obtained their knowledge or how the financial entities obtained possession of the note. In other words, the mortgagors are not challenging U.S. Bank's right to enforce the note, but instead, they take issue with the evidence in support of the summary judgment proceeding. In support, the mortgagors cite Deutsche Bank Natl. Trust Co. v. Triplett , 8th Dist. Cuyahoga No. 94924, 2011-Ohio-478, 2011 WL 346061, ¶ 17, and Wilson v. Kasich , 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 46.

{¶ 23} For the purposes of an affidavit, " 'Personal knowledge' has been defined as 'knowledge gained through firsthand observation or experience, as distinguished from a belief based upon what someone else has said.' " JP Morgan Chase Bank v. Stevens , 8th Dist. Cuyahoga No. 104835, 2017-Ohio-7165, 2017 WL 3433106, ¶ 32, quoting Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707. "[W]here an affiant attests that he or she has personal knowledge of the transaction, 'this fact cannot be disputed absent evidence to the contrary.' " Id. , quoting Household Realty Corp. v. Henes , 8th Dist. Cuyahoga No. 85916, 2007-Ohio-5846, 2007 WL 3205522, ¶ 12-13. And, " '[t]here is no requirement that an affiant explain the basis for his personal knowledge where his personal knowledge can be reasonably inferred based on the affiant's position and other facts contained in the affidavit.' " Id. at ¶ 34, quoting Nationstar Mtge., L.L.C. v. Perry , 8th Dist. Cuyahoga No. 99497, 2013-Ohio-5024, 2013 WL 6021461, ¶ 15.

{¶ 24} The mortgagors claim that the affidavits are conclusory and made without reference to how the affiants obtained their respective knowledge. Nothing demonstrates that the affiants lacked personal knowledge. When challenging an affiant's personal knowledge, the opposing party must present evidence to contradict the affiant's statement. The cases upon which the mortgagors rely support this notion.

{¶ 25} In Triplett , 8th Dist. Cuyahoga No. 94924, 2011-Ohio-478, 2011 WL 346061, at ¶ 16, for example, there was evidence that the plaintiff executed the assignment of the mortgage after filing the lawsuit, and thus lacked standing-the assignment was recorded after the lawsuit was filed. Id. The court concluded this demonstrated that a verified statement to the contrary was insufficient to demonstrate standing. Id. In this case, the mortgagors have not presented any evidence contradicting the affiants' statements for the purpose of calling into question their verified statements of having personal knowledge over the matters.

{¶ 26} The mortgagors' remaining citation, Wilson , 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 46, is not applicable. In that case, the court was reviewing an expert's reliability as presented through an affidavit. The affidavits in support of the motion for summary judgment were executed by fact witnesses, and the reliability of their statements is not an issue-especially in consideration that we are reviewing the affidavits for the purposes of summary judgment and credibility is not an issue. As a result, the mortgagors have not demonstrated that the affidavits offered in support of summary judgment were not based on the affiants' personal knowledge. The trial court did not err in considering the affidavits, and the third assignment of error is overruled.

{¶ 27} The mortgagors have not demonstrated any reversible error, and the decree of foreclosure is affirmed.

TIM McCORMACK, P.J., and MARY J. BOYLE, J., CONCUR

      Federal law allows the creation of mortgage-related securities. Thompson v. Bank of Am., N.A. , 773 F.3d 741, 749 (6th Cir.2014), citing Securities Act of 1933, 15 U.S.C. 77a et seq., and Secondary Mortgage Market Enhancement Act of 1984, 1984 Pub.L. 98-440, 98 Stat. 1689. Securitization is a contract separate and distinct from the debt obligations under the note. Id.

      U.S. Bank National Association, as Trustee, successor in Interest to Bank of America, National Association as Trustee as successor by merger to LaSalle Bank NA as Trustee for Washington Mutual Mortgage Pass-Through Certificates WMALT Series 2005-4 Trust ("U.S. Bank").


author: JENSEN, J.

text:
    STATE of Ohio, Appellee v. DaMichael CUNNINGHAM, Jr., Appellant
    Nos. L-16-1248 L-16-1249
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: February 23, 2018
    Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorneys, for appellee.
    Sean P. Martin, for appellant.
    DECISION AND JUDGMENT
   JENSEN, J.

I. Introduction

{¶ 1} This is a consolidated appeal of judgments of the Lucas County Court of Common Pleas in case Nos. CR15-2845 and CR15-3135, sentencing appellant, DaMichael Cunningham, to a total of 17 years and 5 months in prison for possession of cocaine, having weapons while under disability, illegal use of supplemental nutrition assistance benefits or WIC program benefits, and felonious assault.

A. Facts and Procedural Background

i. Facts Pertaining to Case No. CR15-2845

{¶ 2} On November 2, 2015, an indictment was filed with the trial court in case No. CR15-2845, charging appellant with one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree, one count of carrying concealed weapons in violation of R.C. 2923.12(A)(2) and (F), a felony of the fourth degree, one count of having weapons while under disability in violation of R.C. 2923.13(A)(3), a felony of the third degree, one count of tampering with evidence in violation of R.C. 2921.12(A)(1) and (B), a felony of the third degree, two counts of illegal use of supplemental nutrition assistance benefits or WIC program benefits in violation of R.C. 2913.46(B) and (D), a felony of the fifth degree, and one count of obstructing official business in violation of R.C. 2921.31(A), a misdemeanor of the second degree. These charges stemmed from an incident that occurred on July 3, 2015. On that date, Toledo police conducted a traffic stop involving appellant. During the stop, appellant fled from the police on foot, and a pursuit ensued. During the pursuit, police noticed appellant discard several items, which were later retrieved and identified as a firearm and crack cocaine. Appellant was subsequently apprehended and arrested. During the arrest, officers seized a bag of marijuana and two Ohio Direction Food Assistance cards that did not belong to appellant.

{¶ 3} At his arraignment, appellant pleaded not guilty to the foregoing charges, and the matter was set for trial. Following pretrial discovery and several continuances, appellant appeared before the trial court on May 9, 2016, and entered a plea of guilty pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970), to one count each of possession of cocaine, having weapons while under disability, and illegal use of supplemental nutrition assistance benefits or WIC benefits. Pursuant to a written plea agreement, the remaining charges were dismissed by the state.

{¶ 4} Under the terms of the written plea agreement, appellant was eligible to receive up to 60 months in prison. Further, the written plea agreement, which was signed by appellant, states that no promises were made to appellant except those contained within the agreement. The agreement goes on to state those promises as follows: "State will recommend a Nolle as to Counts 2, 4, 6 and 7 at the time of sentencing. Weapon to be ordered destroyed."

{¶ 5} Prior to accepting appellant's Alford plea, the trial court engaged appellant in a thorough Crim.R. 11 colloquy. During the colloquy, the trial court reviewed the potential prison time appellant was facing as a result of his plea. After ensuring that appellant understood the rights he was waiving by virtue of his Alford plea, the trial court accepted appellant's plea and found appellant guilty. Thereafter, the trial court ordered the preparation of a presentence investigation report and set the matter for sentencing.

{¶ 6} One month later, appellant's counsel was granted leave to withdraw as counsel of record. Appellant was then appointed new counsel. One week prior to sentencing, newly appointed counsel filed a motion to withdraw appellant's Alford plea, arguing that appellant and members of his family were assured by previous counsel that appellant would receive community control in lieu of prison time if he pleaded guilty. Appellant and his sister testified at a subsequent evidentiary hearing on the motion to withdraw. Appellant's sister testified that she had spoken to appellant's original counsel prior to the plea hearing and that counsel informed her that appellant would receive a suspended prison sentence if he accepted the state's plea offer. At the conclusion of the evidentiary hearing, the court took the matter under advisement. On September 26, 2016, the court issued its order denying appellant's motion to withdraw his plea, finding that appellant knowingly, intelligently, and voluntarily waived his rights under Crim.R. 11 after consulting with competent counsel and being informed by the trial court of the potential sentence he faced if convicted of the charged offenses.

{¶ 7} Three days later, appellant appeared before the trial court for sentencing. At sentencing, appellant was ordered to serve 11 months in prison for possession of cocaine, 30 months in prison for having weapons while under disability, and 11 months in prison for illegal use of supplemental nutrition assistance benefits or WIC program benefits. The court ordered that the 11-month sentences be served concurrent to one another, but consecutive to the 30-month sentence, for a total prison sentence of 41 months. Further, the court ordered the 41-month sentence to be served consecutively to the sentence appellant received in case No. CR15-3135. Appellant's timely appeal followed.

ii. Facts Pertaining to Case No. CR15-3135

{¶ 8} On December 18, 2015, appellant was indicted in case No. CR15-3135. In the indictment, appellant was charged with one count of murder in violation of R.C. 2903.02(B) and 2929.02, an unspecified felony, and two counts of felonious assault in violation of R.C. 2903.11(A)(2) and (D), felonies of the second degree, along with firearm specifications on all three counts. The indictment stemmed from a shooting that occurred at Spigot Tavern on October 1, 2015, resulting in the death of appellant's friend, Keshaun Groom, and injuries to two others, Anthony and Kimberly Henderson.

{¶ 9} On January 20, 2016, appellant entered a plea of not guilty to the aforementioned charges, and the matter proceeded through discovery. Eight months later, a jury trial commenced, at which the state called several witnesses.

{¶ 10} As its first witness, the state called Anthony Henderson. Anthony is the son of the owner of Spigot Tavern. On the evening of October 1, 2015, Anthony went to Spigot Tavern with his wife, Kimberly, and his son, to watch a football game. According to Anthony, Spigot Tavern has a no-smoking policy. However, patrons of the bar are permitted to smoke either on the bar's patio or outside the entrance.

{¶ 11} As he was watching the football game, Anthony's friend, Mr. Smith, noticed Groom smoking inside the bar. Groom and appellant came to the bar together that evening, along with their friends, Jake Newman and Alan Derrington. Smith informed Groom that he needed to smoke outside the bar, and provided him with a cup of water to put out his cigarette. Groom disregarded Smith's instruction, prompting Anthony to order Groom to either go out onto the patio to smoke or to smoke outside the front entrance. According to Anthony's testimony, Groom initially refused to go outside, which led to a physical altercation. Ultimately, Groom and Newman were forced out of the front entrance of the bar and the door was locked behind them. Anthony proceeded to retrieve a handgun from the office and made his way toward the front of the bar. Meanwhile, Groom and Newman were attempting to reenter the bar through the locked entrance.

{¶ 12} After Anthony returned to the front of the bar, appellant began questioning him as to why he had Groom and Newman removed from the bar. Appellant began making his way toward the locked entrance. During this time, appellant was "a couple feet" from the front entrance, within an earshot of Groom and Newman. By now, Groom had brandished a handgun, and was tapping on a window next to the front entrance with the handgun and pointing it through the window.

{¶ 13} As appellant was making his way toward the entrance, Kimberly directed him to exit the bar out of the side door to avoid any further confrontation with Groom. Video surveillance depicts Kimberly in a discussion with appellant, during which she points in the direction of the side door. During this discussion, Anthony and Kimberly informed appellant that Groom had a firearm. Nonetheless, appellant disregarded Kimberly's instruction to exit out of the side door, and chose instead to unlock the front entrance door and exit the bar. As soon as appellant opened the door, Groom entered and began to shoot at Anthony, who returned fire. Anthony was struck in the thigh with one gunshot and Kimberly was also grazed by a bullet. Groom was mortally wounded. Groom was subsequently taken to the hospital where he succumbed to his injuries.

{¶ 14} As its second witness, the state called Kimberly to the stand. Kimberly generally corroborated Anthony's testimony. According to Kimberly, appellant indicated that Groom was his friend prior to exiting the bar. Kimberly then explained to appellant that Groom had a firearm, and appellant responded that he was "strapped too." Immediately thereafter, appellant turned from Kimberly, went to the front entrance, unlocked it, and exited the bar. According to Kimberly, Groom immediately entered the bar and began shooting.

{¶ 15} The state's remaining witnesses consisted of four police officers involved in the investigation of the incident, as well as the deputy coroner that conducted Groom's autopsy. According to the coroner's report, Groom died from two gunshot wounds.

{¶ 16} At the close of the state's evidence, defense counsel moved, without argument, for acquittal pursuant to Crim.R. 29. The court denied counsel's motion, and appellant rested without calling any witnesses. Thereafter, the parties presented their closing arguments. During its closing argument, the state displayed a 2013 case from this court, State v. Taylor , 6th Dist. Lucas No. L-11-1202, 2013-Ohio-5182, 2013 WL 6174919, to explain the concept of proximate cause as it related to the felony murder charge. Defense counsel immediately objected to the state's display of the case in front of the jury. A bench discussion was held, after which the trial court sustained the objection, ordered the state to remove the case from the jury's view, and instructed the jury as follows: "Ladies and gentlemen, you are instructed to disregard the statement that was just made by [the state]."

{¶ 17} Following closing arguments, the jury received its instructions and began its deliberations. Thereafter, the jury returned with a verdict of guilty as to the felonious assault charges, but not guilty as to felony murder and the gun specifications. The trial court continued the matter for sentencing following the preparation of a presentence investigation report. At sentencing, the trial court ordered appellant to serve seven years in prison on each of the two felonious assault charges, to be served consecutively for a total of 14 years. Further, the court ordered appellant's 14-year sentence to be served consecutively with the 41-month sentence imposed in case No. CR15-2845, for a total of 17 years and 5 months. Thereafter, appellant filed a timely notice of appeal.

{¶ 18} On November 15, 2016, approximately two weeks after receiving appellant's notices of appeal from case Nos. CR15-2845 and CR15-3135, we sua sponte ordered the appeals consolidated.

B. Assignments of Error

{¶ 19} On appeal, appellant assigns the following errors for our review:

1) Appellant's first attorney committed ineffective [assistance of] counsel by advising the Appellant to plea based on highly incompetent statements regarding possible outcomes in CR-2015-2845.
2) Trial Court erred by denying Appellant's motion to withdraw his Alford plea due to ineffective assistance of counsel of his first attorney [in] CR-2015-2845.
3) Appellant's Trial Counsel committed ineffective assistance of counsel by failing to articulate why the State of Ohio had not met the burden of proof during the Rule 29(A) Motion in CR-2015-3135.
4) The State of Ohio committed prosecutorial misconduct by introducing appellate case law and including the citing authority during closing arguments in CR-2015-3135.
5) The State of Ohio failed to produce legally sufficient evidence to sustain convictions for Felonious Assault in CR-2015-3135.
6) Appellant's convictions of Felonious Assault fell against the manifest weight of the evidence in CR-2015-3135.
7) Appellant's Trial Counsel committed ineffective assistance of counsel by failing to file a Rule 29(C) Motion after the State of Ohio had not met the burden of proof and the jury returned an improper verdict in CR-2015-3135.

II. Analysis

A. Ineffective Assistance of Counsel

{¶ 20} In his first assignment of error, appellant argues that his trial counsel was ineffective in case No. CR15-2845 in advising him as to the likely sentence he would receive after accepting the state's plea offer.

{¶ 21} In order to demonstrate ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show that counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's error, the result of the proceedings would have been different. Id. at 687-688, 694, 104 S.Ct. 2052. In cases in which the defendant enters a guilty plea, the defendant waives any appealable errors, including a claim of ineffective assistance, "unless he or she demonstrates that the alleged errors precluded him or her from entering a knowing, voluntary plea." See State v. Ellis , 6th Dist. Lucas No. L-15-1296, 2016-Ohio-8086, 2016 WL 7188621, ¶ 35, citing State v. Kocian , 6th Dist. Ottawa No. OT-07-018, 2008-Ohio-74, 2008 WL 110632 ; see also State v. Rice , 6th Dist. Lucas No. L-06-1343, 2007-Ohio-6529, 2007 WL 4277889, ¶ 17 ("Due to appellant's Alford plea, we are limited to an examination of whether appellant's counsel's performance caused his plea to be less than knowing and voluntary.").

{¶ 22} Here, appellant argues that trial counsel was incompetent in advising him to enter an Alford plea based upon the assertion that he would receive community control in lieu of prison upon entering the plea. Appellant further asserts that trial counsel did not review the plea form nor provide appellant with an opportunity to review it.

{¶ 23} Appellant's assertions concerning promises that were made to him by his trial counsel are discredited by a review of the plea colloquy in case No. CR15-2185. Prior to accepting appellant's Alford plea, the court questioned appellant as follows:

THE COURT: Your attorney said that you are going to enter a plea of guilty pursuant to the Supreme Court case of North Carolina versus Alford to count one in the indictment, which is possession of cocaine, a felony of the fifth degree, count three in the indictment, which is having weapons while under disability, a felony of the third degree, and count five in the indictment, which is illegal use of supplemental nutrition assistance benefits or WIC program benefits, a felony of the fifth degree. And in exchange for your plea the State of Ohio will nolle, or dismiss, counts two, four, six and seven at time of sentencing and the weapon will be destroyed. Is that your understanding of what you're doing here today?
THE DEFENDANT: Yes, ma'am.
THE COURT: Are you satisfied with the amount of time you've had to speak with your attorney about this case?
THE DEFENDANT: Yes, ma'am.
THE COURT: Are you satisfied with her advice and counsel?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did anyone force you to enter this plea?
THE DEFENDANT: No, ma'am.
THE COURT: Did anyone promise you anything to get you to enter this plea?
THE DEFENDANT: No, ma'am.
THE COURT: You're doing it voluntarily?
THE DEFENDANT: Yes, ma'am.
THE COURT: As I stated, in count one you're entering a plea to a felony of the fifth degree. Do you understand that that offense carries a basic prison term of six to 12 months?
THE DEFENDANT: Yes, ma'am.
* * *
THE COURT: Now, count three is a felony of the third degree. Do you understand that that offense carries a basic prison term of nine to 36 months?
THE DEFENDANT: Yes, ma'am.
* * *
THE COURT: And count five is a felony of the fifth degree which carries a basic prison term of six to 12 months. Do you understand that?
THE DEFENDANT: Yes, ma'am.
* * *
THE COURT: So as you stand here today you're facing a total of up to 60 months in a state institution. Do you understand that?
THE DEFENDANT: Yes, ma'am.

{¶ 24} As is evident from the foregoing discussion, appellant was aware of the possibility of prison time prior to agreeing to plead guilty. Further, the written plea agreement reiterates that possibility, informing appellant that he could receive up to 60 months in prison. The court ensured that no promises were made to appellant except those contained within the agreement. According to the agreement, the state's only promise was that it would dismiss counts 2, 4, 6 and 7 of the indictment at the time of sentencing.

{¶ 25} In light of the thorough colloquy that took place in this case, paired with the clear terms of the written plea agreement that was signed by appellant, we find that appellant entered his Alford plea with full awareness that he could be sentenced to prison. In the final analysis, we find that the incompetence asserted by appellant did not preclude him from entering a knowing, voluntary plea. Therefore, appellant's ineffective assistance claim must fail.

{¶ 26} Accordingly, appellant's first assignment of error is not well-taken.

B. Motion to Withdraw Alford Plea

{¶ 27} In his second assignment of error, appellant asserts that the trial court erred in denying his motion to withdraw his Alford plea.

{¶ 28} Under Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." A motion made pursuant to Crim.R. 32.1 is left to the sound discretion of the trial court. State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus. Thus, we review the trial court's decision denying appellant's motion under an abuse of discretion standard. State v. Francis , 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32. Abuse of discretion suggests that the trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 29} The Ohio Supreme Court has held that "a presentence motion to withdraw a guilty plea should be freely and liberally granted." State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Appellate courts evaluate the trial court's decision based upon the following considerations:

(1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge. State v. Murphy , 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39 (6th Dist.), citing State v. Griffin , 141 Ohio App.3d 551, 554, 752 N.E.2d 310 (7th Dist.2001).

{¶ 30} A change of heart is an insufficient reason to permit withdrawal of the plea. State v. Williams , 6th Dist. Lucas Nos. L-15-1259, 2016-Ohio-4905, 2016 WL 3654722, ¶ 13.

{¶ 31} In this case, appellant contends that the trial court erred in denying his motion to withdraw his Alford plea because of the alleged ineffective assistance of trial counsel that we addressed and rejected above. Having found no merit to appellant's contention that he was rendered ineffective assistance by his trial counsel, we find that the trial court did not abuse its discretion in denying appellant's motion to withdraw his plea. Our conclusion is supported by an examination of the aforementioned factors. Specifically, we find that appellant was represented by counsel prior to entering his plea, and was thoroughly informed of his rights under Crim.R. 11 at the plea hearing. Moreover, the trial court gave full and fair consideration of the motion, rejecting appellant's argument after noting that appellant indicated that he understood the nature of the charges and the potential prison time he faced at the plea hearing. Finally, appellant does not offer any argument as to his innocence of the charges to which he pleaded. Rather, the record supports the inference that appellant simply had a change of heart and wished to withdraw his plea.

{¶ 32} Under these facts, the trial court's denial of appellant's motion to withdraw his Alford plea does not constitute an abuse of discretion. Accordingly, appellant's second assignment of error is not well-taken.

C. Sufficiency, Manifest Weight, and Appellant's Crim.R. 29 Motion

{¶ 33} In his third assignment of error, appellant argues that his trial counsel in case No. CR15-3135 provided ineffective assistance in failing to articulate an argument to support his Crim.R. 29 motion for acquittal. In his fifth and sixth assignments of error, appellant argues that his convictions for felonious assault were not supported by sufficient evidence and were against the manifest weight of the evidence, respectively. Relatedly, appellant argues in his seventh assignment of error that his counsel was ineffective for failing to move for an acquittal under Crim.R. 29 after the jury returned its guilty verdict. Because these assignments are interrelated, we will address them together.

{¶ 34} Crim.R. 29 provides for an entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction. "An appellate court reviews a denial of a Crim.R. 29 motion for acquittal using the same standard that is used to review a sufficiency of the evidence claim." State v. Reyes , 6th Dist. Wood No. WD-03-059, 2005-Ohio-2100, 2005 WL 1009999, ¶ 21, citing State v. Carter , 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) ; State v. Jones , 6th Dist. Lucas No. L-08-1001, 2009-Ohio-6501, 2009 WL 4727761, ¶ 32.

{¶ 35} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally adequate to support a jury verdict as to all elements of the crime.

State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The proper analysis under a sufficiency of the evidence standard is " 'whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v. Williams , 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 36} When reviewing a manifest weight of the evidence issue, we sit as a "thirteenth juror." State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). That is, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Our role is to determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Id. We reverse a conviction on manifest weight grounds for only the most "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 37} In case No. CR15-3135, appellant was convicted on two counts of felonious assault in violation of R.C. 2903.11, which provides, in relevant part:

(A) No person shall knowingly do either of the following:
* * *
(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance.
* * *
(D)(1)(a) Whoever violates this section is guilty of felonious assault.

{¶ 38} In this case, Groom was the individual who fired the shots that caused physical harm to Anthony and Kimberly. Clearly, this act constituted felonious assault. While appellant did not directly commit felonious assault, he was charged with felonious assault on a theory of complicity.

{¶ 39} "Under R.C. 2923.03, a person may be an accomplice in an offense and prosecuted as the principal offender if, among other things, he aids or abets another in committing the offense while acting with the kind of culpability required for commission of the offense." State v. Coleman , 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph two of the syllabus. "To aid is to assist. To abet is to incite or encourage." State v. Sims , 10 Ohio App.3d 56, 58, 460 N.E.2d 672 (8th Dist.1983). A person's mere association with a principal offender is not an aiding or abetting of the principal's act; there must be some active participation, assistance, or encouragement by the accomplice. State v. Nievas , 121 Ohio App.3d 451, 456, 700 N.E.2d 339 (8th Dist.1997). " 'Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed.' " State v. Johnson , 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), quoting State v. Pruett , 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971).

{¶ 40} The evidence presented by the state in this case reveals that Groom and appellant came to the Spigot Tavern together on the night of the shooting. After the fight that preceded the shooting, appellant became upset with Anthony and Kimberly for removing Groom and his other friend, Newman, from the bar. While arguing with Anthony and Kimberly, appellant was asked not to exit out of the front entrance, which was locked at the time, because Groom was outside the door with a firearm. Meanwhile, Groom was using his handgun to knock on the window that was next to the door and visible from appellant's vantage point. Ultimately, appellant disregarded Kimberly's plea that he use the side door to exit the bar, opting instead to exit from the front door. By unlocking the front door, appellant assisted Groom in committing felonious assault, a result that was entirely avoidable and foreseeable in light of Groom's conduct outside the bar.

{¶ 41} Notwithstanding the foregoing evidence, appellant contends that the state failed to demonstrate that he used a deadly weapon during the commission of the offenses in question, as evidenced by the jury's rejection of the firearms specifications contained in the indictment. This argument is without merit because appellant was convicted of complicity to commit felonious assault. Given the complicity charge, "the jury was not required to find that appellant was the person who displayed, brandished, or used a firearm. It could have found that one of appellant's cohorts displayed, brandished, or used a firearm in the commission of the robbery." State v. Franklin , 7th Dist. Mahoning No. 06-MA-79, 2008-Ohio-2264, 2008 WL 2003778, ¶ 99. Groom clearly utilized a firearm during the commission of the felonious assaults, a fact not disputed by appellant. The use of the firearm was evidenced by the gunshot wounds received by Anthony and Kimberly. Therefore, we do not find that the jury's rejection of the firearms specifications was inconsistent with its finding of guilt as to the felonious assault charges.

{¶ 42} Ultimately, we find that the evidence outlined above is sufficient to support appellant's convictions for complicity to commit felonious assault. Moreover, we do not find that this case presents the exceptional case in which the evidence weighs heavily against the conviction. Consequently, we find that appellant's convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. Because appellant's convictions were supported by sufficient evidence, we do not find that counsel's failure to articulate an argument to support the Crim.R. 29 motion prejudiced appellant. Likewise, we find that appellant was not prejudiced by counsel's failure to raise a Crim.R. 29(C) motion after the jury returned its verdict. Accordingly, appellant's third, fifth, sixth, and seventh assignments of error are not well-taken.

D. Prosecutorial Misconduct

{¶ 43} In his fourth assignment of error, appellant argues that the state committed prosecutorial misconduct when it displayed case law to the jury during closing arguments in CR15-3135.

{¶ 44} The two fold test for prosecutorial misconduct is whether the prosecutor's conduct at trial was improper and whether it prejudicially affected the substantial rights of the defendant. State v. Lott , 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). A prosecutor's conduct during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch , 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). Thus, a reversal for prosecutorial misconduct is not warranted unless it is clear that the outcome of the trial would have been different but for the misconduct. State v. Smith , 14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984). In reviewing closing arguments for prosecutorial misconduct, we view the remarks in the context of the entire closing argument. State v. Treesh , 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001).

{¶ 45} In support of his prosecutorial misconduct argument, appellant complains that the state displayed case law in front of the jury and attempted to read a portion of it prior to being instructed to take it down after the trial court sustained defense counsel's objection. Even assuming, arguendo, that the state's reading of case law to the jury was improper, appellant cannot demonstrate that it had an affect on the outcome of the proceedings. The trial court promptly ordered the state not to display the written decision in front of the jury. Further, the court provided a curative instruction, in which it ordered the jury to disregard the state's comments regarding the case law. Finally, and most importantly, the case that was being discussed by the state explained proximate cause in the context of a felony murder charge. The fact that appellant was acquitted on the murder charge makes it clear that the state's conduct had no prejudicial bearing on appellant.

{¶ 46} Accordingly, appellant's fourth assignment of error is not well-taken.

III. Conclusion

{¶ 47} In light of the foregoing, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Christine E. Mayle, P.J.

Mark L. Pietrykowski, J.

CONCUR.