author: HENSAL, Presiding Judge.

text:
    IN RE: T.D.
    No. 16AP0035
    Court of Appeals of Ohio, Ninth District, Wayne County.
    Dated: January 22, 2018
    TARA N. MEIER, pro se Appellant.
    MARK J. BUIE, Attorney at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   HENSAL, Presiding Judge.

{¶ 1} Tara Meier appeals judgments of the Wayne County Court of Common Pleas, Juvenile Division, that determined that Anthony Wilson is the father of her daughter T.D. and, later, awarded custody of T.D. to him. For the following reasons, this Court affirms.

I.

{¶ 2} Ms. Meier gave birth to T.D. in 2005. At the time, she was married to Robert Brick. Genetic testing later established that Mr. Wilson is the natural father of T.D. In 2010, following Ms. Meier's divorce from Mr. Brick, Mr. Wilson filed a complaint to establish parentage in the juvenile division of the Wayne County Court of Common Pleas. He also filed a motion for custody and an allocation of parental rights. As the case progressed, Ms. Meier and Mr. Wilson agreed to a shared parenting plan. The juvenile court subsequently entered a judgment that changed T.D.'s name and ordered the issuance of a new birth certificate that would list Mr. Wilson as her father. It also adopted the parties' shared parenting plan and made it the order of the court. Under the terms of the shared parenting plan, T.D. would primarily reside with Ms. Meier.

{¶ 3} In 2014, Mr. Wilson moved for reallocation of parental rights, alleging that Ms. Meier had moved outside of Wayne County and had not notified him of her new address. The court subsequently granted Mr. Wilson temporary emergency custody after Ms. Meier moved T.D. to Texas without providing the notice required by the parties' shared parenting plan. Following a hearing on the motion for reallocation of parental rights, a magistrate recommended awarding custody to Mr. Wilson. Ms. Meier filed multiple objections to the decision, but the juvenile court overruled her objections and granted Mr. Wilson's motion for reallocation of parental rights. Ms. Meier has appealed, assigning three errors.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY FAILING TO DISMISS WILSON'S COMPLAINT TO ESTABLISH PATERNITY (FEB. 1, 2010), WHERE MEIER HAD PREVIOUSLY FILED AN ACTION FOR DIVORCE IN ANOTHER OHIO COURT, AND WHERE THE MINOR CHILD WAS BORN OF THAT MARRIAGE AND SUBJECT
TO THE DIVORCE PROCEEDINGS IN SAID OTHER OHIO COURT.

{¶ 4} Ms. Meier argues that Mr. Wilson's complaint to establish paternity was improper because he did not request an administrative determination of paternity first under Revised Code Section 3111.38 and because none of the exceptions outlined in Section 3111.381 applied. She also argues that, despite her divorce from Mr. Brick, he remains T.D.'s presumptive father and that the genetic testing that was performed was insufficient evidence to rebut the presumption by clear and convincing evidence under Section 3111.03(B). Ms. Meier, therefore, argues that the trial court's order granting Mr. Wilson custody of T.D. places her with a stranger who has no biological connection to her. According to Ms. Meier, the trial court's order is invalid because it did not have jurisdiction to decide this case.

{¶ 5} The Ohio Supreme Court has explained that "[t]he general term 'jurisdiction' can be used to connote several distinct concepts, including jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction over a particular case." Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18. "Subject-matter jurisdiction is the power of a court to entertain and adjudicate a particular class of cases" and "is determined without regard to the rights of the individual parties involved in a particular case." Id. at ¶ 19. A court's jurisdiction over a particular case on the other hand "refers to the court's authority to proceed or rule on a case that is within the court's subject-matter jurisdiction." Id. Here, Ms. Meier recognizes the juvenile court's general power to adjudicate paternity actions. See R.C. 3111.06(A). Her argument, therefore, involves the juvenile court's jurisdiction over a particular case, not its subject-matter jurisdiction. See Morris v. Mottern , 2015-Ohio-4523, 48 N.E.3d 92, ¶ 22-23 (concluding that argument that trial court lacked authority to preside over paternity action because no exception under Section 3111.381 applied involved the court's jurisdiction over a particular case). Unlike lack of subject-matter jurisdiction, lack of jurisdiction over a particular case only renders a judgment voidable. Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 12.

{¶ 6} In Morris , this Court recognized that "alleged errors in the trial court's exercise of its jurisdiction may be forfeited if not timely raised[.]" Morris at ¶ 24. Ms. Meier did not challenge the trial court's authority to rule on Mr. Wilson's paternity action before it entered its judgment in October 2010. To the contrary, she specifically agreed that T.D.'s name should be changed and that Mr. Wilson should be listed as T.D.'s father on a new birth certificate. She also entered into a shared parenting plan with Mr. Wilson. We, therefore, conclude that Ms. Meier has not preserved the issue of the trial court's jurisdiction over Mr. Wilson's paternity action for appellate review. Ms. Meier's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN ALLOCATING PARENTAL RIGHTS AND RESPONSIBILITIES WITHOUT FIRST MAKING A DETERMINATION OF THE EXISTENCE OR NONEXISTENCE OF A PARENT AND CHILD RELATIONSHIP AS IS REQUIRED BY R.C. § 3113.13(C), AND WITH ONLY THE PARTIES' AGREEMENT TO SUPPORT A QUASI-DETERMINATION OF THE EXISTENCE OF A PARENT AND CHILD RELATIONSHIP.

{¶ 7} In her second assignment of error, Ms. Meier again argues that the trial court did not have sufficient evidence to determine whether Mr. Wilson is T.D.'s father, noting that the alleged paternity test that established the relationship was never made part of the record. According to Ms. Meier, the parties' agreement that Mr. Wilson is T.D.'s father is insufficient to legally establish such relationship under Chapter 3111. She argues that, in the absence of a specific finding by the juvenile court that a parent and child relationship exists between Mr. Wilson and T.D., the court did not have authority to allocate any parental rights and responsibilities to Mr. Wilson.

{¶ 8} Section 3111.13(A) provides that "[t]he judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes." The section does not provide that the court's judgment must include any specific language or take any particular form. In this case, the juvenile court made the parties' shared parenting plan "the order of the Court." That plan indicated that "the parties are the parents of one (1) child born as issue of their relationship, to wit: [T.D.] * * *. The record, therefore, does establish Mr. Wilson's paternity of T.D., contrary to Ms. Meier's assertion.

{¶ 9} To the extent that Ms. Meier is arguing that the court's paternity determination was not supported by sufficient evidence, we note that she stipulated to that finding. See In re B.M. , 181 Ohio App.3d 606, 2009-Ohio-1718, 910 N.E.2d 46, ¶ 43 (11th Dist.) ("Since a stipulation has the same force and effect as testimony, it may, depending on the nature of the matter or matters stipulated, rise to the level of clear and convincing evidence."). To the extent that Ms. Meier is challenging the trial court's authority to modify the shared parenting plan, Section 3111.16 provides that a court has continuing jurisdiction to modify or revoke a judgment or order issued under Section 3111.01 to 3111.18. Accordingly, we conclude that Ms. Meier has failed to establish any error by the juvenile court. Ms. Meier's second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION, OR IN THE ALTERNATIVE, IMPROPERLY EXERCISED SUBJECT MATTER JURISDICTION, UNDER: (1) R.C. § 2151.23(A)(2) ; (2) R.C. § 3127.18(A) ; (3) R.C. § 3127.16 ; (4) R.C. § 2705.01 ET SEQ.; (5) R.C. § 3111.01 ET SEQ.; AND (6) R.C. §§ 3127.01 - 3127.51. THE TRIAL COURT FURTHER ERRED WHEN IT FAILED TO FULLY COMPLY WITH CIV.R. 53(D)(3)(a)(iii) IN ANY MAGISTRATE'S DECISION; WHEN IT FAILED TO COMPLY WITH CIV.R. 53(D)(2)(a)(ii) WITH THE ENTRY OF ITS VARIOUS MAGISTRATE'S ORDERS; AND, WHEN IT FAILED TO ENTER ANY CIV.R. 58(B) NOTICE AT ANY POINT IN THE CASE BELOW.

{¶ 10} Ms. Meier next argues that the trial court lacked jurisdiction over this case under Section 2151.23(A)(2) and Section 3127.18(A). Section 2151.23(A)(2) provides that a juvenile court has exclusive original jurisdiction "to determine the custody of any child not a ward of another court of this state[.]" Section 3127.18(A) provides circumstances under which a "court of this state has temporary emergency jurisdiction" over a child. Ms. Meier appears to be challenging the juvenile court's original jurisdiction over this action as well as its jurisdiction to decide the emergency motion for custody that Mr. Wilson filed after she took T.D. to Texas.

{¶ 11} To the extent that Ms. Meier is challenging the juvenile court's initial jurisdiction over this action, we have already concluded that she forfeited this argument. See Morris , 2015-Ohio-4523, 48 N.E.3d 92, at ¶ 24. To the extent that she is challenging the court's jurisdiction over Mr. Wilson's emergency motion, we previously noted that the court retained continuing jurisdiction to modify its orders, including its custody designation under Section 3111.13(C). See R.C. 3111.16.

{¶ 12} Ms. Meier also argues that the juvenile court lacked jurisdiction under Section 3127.16 because the domestic relations court that decided her divorce action had already entered a custody determination regarding T.D. That section provides:

Except as otherwise provided in section 3127.18 of the Revised Code, a court of this state that has made a child custody determination consistent with section 3127.15 or 3127.17 of the Revised Code has exclusive, continuing jurisdiction over the determination until the court or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.

R.C. 3127.16. The trial court rejected Ms. Meier's argument because the record did not contain a copy of the custody order allegedly entered in her divorce action. The court also determined that, even if the divorce decree disestablished Mr. Brick's paternity of T.D., it would not constitute a "child custody determination" for purposes of Section 3127.16. In her brief, Ms. Meier has not identified any place in the record where there is a copy of the alleged "child custody determination" by the divorce court. We, therefore, cannot say that the trial court erred when it determined that it did not lack jurisdiction under Section 3127.16.

{¶ 13} Ms. Meier also argues that the juvenile court could not consider Mr. Wilson's contempt motion because she was immune under Section 3127.08(A), because he failed to properly serve her, because his motion was not specific enough, because she was denied counsel, and because she was not given an opportunity to be heard on the motion. This Court need not address her arguments, however, because she has failed to properly develop an argument in support of them. C.L. v. J.K. , 9th Dist. Summit No. 28297, 2017-Ohio-1024, 2017 WL 1100613, ¶ 3. Specifically, her merit brief "contains no application of the relevant law to the facts presented, nor any cogent analysis of the pertinent issues." Id. at ¶ 5 ; see App.R. 16(A)(7) (providing that an appellant's brief must include "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.").

{¶ 14} Ms. Meier also attempts to incorporate into her brief the arguments she made with respect to a petition for writ of mandamus and petition for writ of habeas corpus that this Court previously denied as well as the arguments she made in her objections to the magistrate's decision. Parties, however, cannot simply incorporate arguments by reference to other documents. See Deutsche Bank Natl. Trust Co. v. Taylor , 9th Dist. Summit No. 28069, 2016-Ohio-7090, 2016 WL 5724200, ¶ 14, fn.1. Ms. Meier's third assignment of error is overruled.

III.

{¶ 15} Ms. Meier's assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas is affirmed.

Judgment affirmed.

TEODOSIO, J.

CONCURS.

CARR, J.

CONCURS IN JUDGMENT ONLY.

      Although the trial court entered its original judgment in this case in 2010, the judgment did not include the language required by Civil Rule 58(B). Accordingly, Ms. Meier's time to appeal the judgment never began to run. Scott v. McCluskey , 2012-Ohio-2484, 972 N.E.2d 626, ¶ 20. In the notice of appeal that she filed following the trial court's grant of Mr. Wilson's motion for reallocation of paternal rights, Ms. Meier has specifically listed each of the trial court's journal entries since 2010. Upon review of the record, we conclude that she has timely exercised her right to appeal all of those decisions.


source: Caselaw Access Project

license: Public Domain

text:
    Kim M. MANLEY, Plaintiff-Appellee, v. James M. MANLEY, Defendant-Appellant.
    NO. 17 CO 0006
    Court of Appeals of Ohio, Seventh District, Columbiana County.
    Dated: January 22, 2018
    Atty. Carl King, 115 West Lincoln Way, Lisbon, Ohio 44432, No Brief Filed, For Plaintiff-Appellee.
    Atty. Dominic Frank, Betras, Kopp & Harshman, 1717 Lisbon Street, East Liverpool, Ohio 43920, For Defendant-Appellant.
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Defendant-Appellant James Manley appeals the decision of the Columbiana County Common Pleas Court sentencing him to 20 days in jail for failing to purge his contempt by paying his delinquent spousal support owed to Plaintiff-Appellee Kim Manley. He contends the court abused its discretion as he started paying his current spousal support, started paying extra some months in order to reduce the arrearage, and proposed to pay the arrearage in full once a retirement account was released. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 2} The parties' divorce trial was held before a magistrate on February 5, 2015. The magistrate issued a divorce decree on March 16, 2015, which was signed by the trial court the same day. Appellant was ordered to pay spousal support in the amount of $2,000 per month. The court retained jurisdiction to modify the spousal support. Appellant did not file objections to the divorce decree.

{¶ 3} On April 7, 2015, Appellant filed a motion to modify spousal support due to a change in employment circumstances. On July 22, 2015, Appellee filed a contempt motion against Appellant due to his failure to pay spousal support as ordered (and issues with the sale of the marital residence). The cross-motions were heard by the magistrate. On October 9, 2015, a magistrate's decision and judgment entry was issued, stating "At this point, the Court does not find the Defendant to be in contempt at this time, but makes the following orders * * *." After setting forth findings regarding the sale of the house, Appellant's motion to modify spousal support was denied on the basis that his income decrease was voluntary due to his early retirement. Appellant filed timely objections to the refusal to modify spousal support. On June 6, 2016, the trial court overruled Appellant's objections and adopted the magistrate's decision. Appellant did not appeal this decision.

{¶ 4} In the meantime, on February 29, 2016, Appellee filed another contempt motion for failure to pay spousal support as ordered. She also sought court costs and attorney fees. The hearing on the contempt motion proceeded on August 4, 2016. The magistrate released a decision on August 8, 2016, finding Appellant in contempt due to his arrearage of $27,232.15 and stating Appellant stipulated to the finding of contempt. Appellant was "given the opportunity to purge the contempt by promptly paying his delinquent spousal support, in full ." (Emphasis original). Appellant was informed he could be sentenced to thirty days in jail, fined up to $250, and ordered to pay attorney's fees. The trial court signed the magistrate's decision, and Appellant was informed he could object under Civ.R. 53. Sentencing was held in abeyance pending a review set for September 26, 2016. This review hearing was continued on a joint motion.

{¶ 5} The hearing proceeded on November 29, 2016. A magistrate's decision was released on December 5, 2016, which recommended a maximum sentence of thirty days in jail, a $250 fine, and $500 in attorney's fees. The magistrate found Appellant made payments of $2,448 on September 29, 2016 and November 9, 2016 and his arrearage was now $28,480.15. As to the maximum jail sentence, the magistrate found: "Defendant has willfully defied the orders of the Court concerning his spousal support obligation. That obligation commenced on April 1, 2015 and NO payments were made until September 29, 2016." The trial court signed the decision, and Appellant was informed of his right to object under Civ.R. 53. The jail report date was essentially held in abeyance as the matter was set for a sentencing review hearing before the trial court.

{¶ 6} At the January 12, 2017 hearing, the court observed that although Appellant made several payments, a limited portion went toward the arrearage. (1/12/17 Tr. 1). Appellee specified that only $800 went toward the arrearage since the magistrate's decision. (1/12/17 Tr. 2). Appellee said Appellant had assets to pay the arrearage, noting Appellant's counsel agreed he would use the parties' Ameriprise retirement account to pay the arrearage in full. (1/12/17 Tr. 2-3). She asked Appellant to put this promise on the record but opined he should go to jail as it was too late to make up for his blatant noncompliance with court orders. (1/12/17 Tr. 3).

{¶ 7} Appellant's counsel responded by noting Appellant's last four payments covered the $2,000 per month owed in current spousal support but left little available for the arrearage. (1/12/17 Tr. 3). Appellant argued efforts were made to put a QDRO (qualified domestic relations order) in place to release the Ameriprise account valued at over $200,000. Counsel said Appellant intended to use his half of the account to pay the arrearage. (1/12/17 Tr. 4). The court opined Appellee could name Ameriprise as a defendant to obtain an entry ordering the company to pay an additional amount directly to her before paying Appellant (if there was a concern he would not promptly pay the arrearage from the Ameriprise payout). Appellee pointed to the expense already incurred in collecting her support and to the QDRO which was already submitted to Ameriprise for pre-approval. (1/12/17 Tr. 5-7).

{¶ 8} The court reset the case for further review on February 17, 2017, stating: "if you receive that money from Ameriprise, or even if you don't, and that arrearage continues to be where it is without significant reduction, then there is a good chance that the Magistrate's 30 days in jail will be imposed against you. So I would encourage you to do whatever you can in the meantime to get that arrearage taken care of in this case; all right?" (1/12/17 Tr. 8-9). In a January 13, 2017 judgment entry, the court found the arrearage was only nominally reduced since the magistrate's December 2016 decision. The court said the parties were in the process of liquidating an Ameriprise account with a value of over $200,000. The court noted Appellant agreed to use his portion of the proceeds to pay the arrearage and was also attempting to liquidate assets for the same purpose. All prior orders not expressly modified were said to remain in effect.

{¶ 9} At the next hearing, Appellee's counsel noted Appellant was in willful contempt and had multiple opportunities to pay on his arrearage, noting the sale of the residence for over $200,000 and the proceeds of a property auction. (2/17/17 Tr. 2-3). Counsel pointed out how Appellant made no attempt to pay on the arrearage until September 29, 2016 and the payments were "too little, too late." (2/17/17 Tr. 2, 6). Appellee's counsel expressed frustration over Appellant's continual delay, disclosing the reason the magistrate's hearing was continued from September 26, 2016 to November 29, 2016 by joint agreement was because Appellant claimed he would obtain a loan to pay the arrearage before the hearing. (2/17/17 Tr. 7). Appellee indicated the arrearage was at $27,280.15. (2/17/17 Tr. 2). It was noted this was a decrease of $1,200 since the December 2016 magistrate's sentencing decision. Nevertheless, this arrearage balance was higher than when Appellant was found in contempt in August 2016, when the arrearage was $27,232.15.

{¶ 10} Appellant's counsel found it noteworthy the arrearage had not increased, meaning Appellant was paying the monthly obligation as it became due. (2/17/17 Tr. 3). He concluded Appellant made an effort to comply as he started paying "a little more" each month toward the arrearage. (2/17/17 Tr. 4-5). He explained they had hoped the Ameriprise account would have been released by this hearing. (2/17/17 Tr. 3-4). He said Appellant was amenable to an agreed entry ordering Ameriprise to pay the arrearage to Appellee from Appellant's half of the account before releasing it to him. (2/17/17 Tr. 5). Counsel also referred to the motion to terminate spousal support filed in October 17, 2016, observing if the court granted the motion and made the effective date the filing date, then the arrearage would be decreased (by four months of support). (2/17/17 Tr. 4).

{¶ 11} The court found Appellant failed to purge himself of the contempt, noting there had been payments but the issue was the arrearage, which was excessive and only minimally reduced. (2/17/17 Tr. 9). The court's February 21, 2017 entry reiterated the conclusion that the arrearage had not been significantly reduced since the magistrate's finding of contempt. Appellant was sentenced to 20 days in jail, fined $250, and ordered to pay Appellee's attorney's fees in the amount of $500. The within appeal followed.

CONTEMPT

{¶ 12} "Any party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay the support." R.C. 2705.031(B)(1). Civil contempt is a violation against the party who was to benefit from the court order being violated. The Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd. , 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035, ¶ 15-16. Sanctions for civil contempt involve a conditional penalty with remedial or coercive purposes and intent to compel compliance with a court order or compensate the other party for losses; where the contemnor has the opportunity to purge a sanction, the contempt is considered civil. Id. A civil contempt action remains civil even after the contemnor fails to meet the conditions for purging and is then sentenced to jail. Liming v. Damos , 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 14-18.

{¶ 13} At the contempt hearing, an alleged contemnor has the opportunity to defend against the contempt charges, and the contemnor can then object to and/or appeal (depending on whether there was a magistrate) from the contempt finding and any purge conditions. The Docks Venture, 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035 at ¶ 20-23 ; Liming, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297 at ¶ 30. The subsequent purge hearing is limited to evaluating whether the contemnor complied with the purge conditions; the contempt finding and purge conditions are not at issue at the purge hearing or the appeal therefrom. The Docks Venture , 141 Ohio St.3d 107, 2014-Ohio-4254, 22 N.E.3d 1035 at ¶ 20-23 ; Liming, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297 at ¶ 30.

{¶ 14} At either stage, inability to pay is a defense the contemnor has the burden of proving. Liming, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297 at ¶ 20-21, 23 (bare assertions of inability to pay at purge hearing were considered insufficient without supporting evidence). An inability to pay the full amount ordered may not excuse an obligor's failure to pay a lesser amount. McCree v. McCree , 7th Dist. No. 08 MA 109, 2009-Ohio-2639, 2009 WL 1581169, ¶ 18.

{¶ 15} The fact a party has a motion to modify or terminate support pending in a case does not allow the party to ignore prior court orders on support; even if the motion is subsequently granted, the acts in contempt remain. See R.C. 2705.031(E) ("The court shall have jurisdiction to make a finding of contempt for the failure to pay support and to impose the penalties set forth in section 2705.05 of the Revised Code in all cases in which past due support is at issue even if the duty to pay support has terminated"). See also Barton v. Barton , 2017-Ohio-980, 86 N.E.3d 937, ¶ 76 (while an order for payment is in place, the obligor is required to follow it, and the failure to pay under the order can be punished as contempt regardless of whether the order is later reversed on appeal); Hickox v. Hickox , 4th Dist. No. 15CA15, 2016-Ohio-3514, 2016 WL 3406388, ¶ 28 (adopting the quote: "Whether the Court might ultimately modify a support obligation is irrelevant, Mr. Hickox is obligated to at least make an attempt at paying the support when he has funds available.")

{¶ 16} Substantial compliance can also be asserted as a defense. See generally State ex rel. Celebrezze v. Gibbs , 60 Ohio St.3d 69, 75, 573 N.E.2d 62 (1991) (rejecting the contemnor's argument that he substantially complied with the order at issue); State ex rel. Curry v. Grand Valley Local Schools Bd. of Ed. , 61 Ohio St.2d 314, 315, 401 N.E.2d 925, 926 (1980) ("It is rudimentary that contempt will be excused by either actual or substantial compliance * * *"). For instance, at the contempt hearing, the contemnor can allege substantial compliance with the original order, and at the purge hearing, the contemnor can allege substantial compliance with the purge conditions.

{¶ 17} The trial court's decision on contempt is not to be disturbed in the absence of an abuse of discretion. Gibbs , 60 Ohio St.3d at 75, 573 N.E.2d 62. An abuse of discretion exists if 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). A decision is unreasonable if it is unsupportable by any sound reasoning process. See AAAA Ents., Inc. v. River Place Community Urban Redev. Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990) (abuse of discretion review typically involves a determination of whether a decision was unreasonable). "When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court." In re Jane Doe 1 , 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).

ASSIGNMENT OF ERROR

{¶ 18} Appellant's sole assignment of error provides:

"THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT-DEFENDANT WHEN IT FAILED TO CONSIDER HIS PROPOSAL FOR REPAYMENT OF THE ARREARAGE PRIOR TO SENTENCING HIM TO JAIL."

{¶ 19} Appellant contests the jail sentence of 20 days imposed by the trial court due to his failure to purge the civil contempt by paying his spousal support arrearage. The finding of contempt is not before us, and Appellant has not appealed the purge condition of paying the arrearage in full. In appealing the sentence, Appellant focuses on his implied requests at the final review hearing for more time. He also contends the trial court failed to consider his recent full payments toward his $2,000 per month spousal support obligation while trying to make payments on the arrearage despite the decrease in his monthly earnings to $669.75 per month from a pension.

{¶ 20} Appellant acknowledges this is not the place for contesting the spousal support ordered in the divorce decree or the denial of his motion to modify spousal support, neither of which was appealed. The magistrate ordered Appellant to purge his contempt sentence by paying the arrearage in full. The magistrate apparently believed Appellant had the means to do so. At the subsequent sentencing, the magistrate recommended a 30-day jail sentence. The trial court signed the magistrate's decision. We do not have the transcript of the August 8, 2016 contempt hearing before the magistrate and that decision is not before the court. And, we do not have the transcript of the November 29, 2016 sentencing hearing before the magistrate. Nor were those transcripts presented to the trial court for use at the review hearings. We must presume the regularity of those proceedings. See State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs. , 127 Ohio St.3d 202, 2010-Ohio-5073, 937 N.E.2d 1274, ¶ 14.

{¶ 21} Still, the matter was set for further review. At the two further review hearings, Appellant did not present evidence as to his financial condition or his ability to obtain financing pending the Ameriprise payout. See Liming, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297 at ¶ 20-21, 23 (the contemnor has the burden to prove the defense of inability to pay at the purge hearing, and bare assertions, with no supporting evidence, are insufficient to establish the defense). Counsel merely stated Appellant was making an effort as he had been paying his current obligation for the past four months and adding a little toward the arrearage. As Appellee pointed out to the trial court, Appellant received a large payment when the marital residence sold for over $200,000. She also pointed out Appellant had the option of obtaining a loan in order to comply with the court's orders and he indicated he would do so which is why they continued the magistrate's purge hearing. Appellant did not dispute these observations but gave the impression he preferred to wait for a pending account payout. However, his preference is not the court's standard, especially by the time of the final hearing.

{¶ 22} Appellant believes the trial court failed to consider his offer at the final hearing, on February 17, 2017, to stipulate to an entry ordering Ameriprise to pay Appellee the amount of the arrearage owed to her out of Appellant's half of the account before releasing his share. Contrary to Appellant's contention, the trial court did not summarily dismiss his purported proposal. This topic was raised at the January 12, 2017 hearing, when the court mentioned joining Ameriprise as a defendant in order to issue an order and ensure Appellant did not delay payment any further after the account was released. The court was informed the QDRO had already been prepared and was already at Ameriprise for pre-approval. Appellee also stated she did not wish to expend any additional money in ensuring Appellant complied with court orders (by adding a defendant, for instance). The court thus considered the issue at the prior hearing. The court then provided Appellant with more than five additional weeks. During this time, Appellant could hope the account was released and formulate a back-up plan ready to be implemented if the account was not released by the time of the hearing. However, there was no indication Appellant engaged in any remedial actions between the trial court's hearings besides making a $400 payment toward his arrearage.

{¶ 23} Appellant suggests it was unreasonable to sentence him to jail instead of allowing him to continue to wait for distribution of the Ameriprise account. However, he overlooks the additional time the court provided as it was. We also note the second chance he was given in the October 9, 2015 magistrate's decision, when he was not held in contempt on Appellee's July 2015 contempt motion for failure to pay spousal support. Still, he made no effort to comply in response to the denial of his motion to modify spousal support or in response to Appellee's second contempt motion filed on February 29, 2016, which was not heard until August 3, 2016. According to uncontested findings, Appellant's first effort at complying with the court orders took place on September 29, 2016 (more than seven weeks after the contempt hearing where he was advised he could purge his contempt by paying the arrearage in full). And, this first attempt was merely the payment of one month's support plus $448.

{¶ 24} Moreover, the Ameriprise account had been divided evenly by the March 16, 2015 divorce decree. There is no indication Appellant sought a QDRO to access this money until sometime after the magistrate sentenced him to jail. Additionally, Appellant's arrearage increased from the August 4, 2016 contempt hearing (when it was $27,232.15) to the November 29, 2016 hearing (when it was $28,480.15). Although the trial court signed the December 5, 2016 sentencing entry, the case was scheduled for further review and a jail report date was not set. Appellant was given more than five weeks until the trial court held a review on January 12, 2017. During this time, the arrearage decreased by $800 from the November hearing, but the arrearage balance was still more than it was at the time of the August contempt hearing. Upon the trial court's January 2017 review, Appellant was then provided another five weeks to obtain funds to apply toward the arrearage. Still, the arrearage at the final hearing was no less than it was at the time of the contempt hearing. (It went from $27,232.15 in August 2016 to $27,280.15 in February 2017.)

{¶ 25} In accordance, Appellant did not purge his contempt. As the trial court opined, any attempts to comply by paying on the arrearage were minimal. Appellant failed to substantially comply with the purge order. Any inability to pay defense was not established at the hearing before the trial court. Furthermore, there is no indication the trial court failed to consider the arguments presented at the two review hearings it conducted. Considering the totality of the circumstances, the trial court did not abuse its discretion in imposing upon Appellant a sentence of 20 days in jail (plus a $250 fine and $500 in attorney's fees). Appellant's assignment of error is overruled. Accordingly, the trial court's judgment is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.

      Meanwhile, on October 17, 2016, Appellant filed a motion to terminate spousal support, which remained pending during the contempt proceedings.


text:
    STATE of Ohio, Plaintiff-Appellee, v. Devin TELEGO, Defendant-Appellant.
    NO. 16 MA 0171
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: January 22, 2018
    Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph Rivera, Atty. Nicholas Brevetta, Assistant Prosecuting Attorney, 21 West Boardman St., 6th Floor, Youngstown, Ohio 44503, For Plaintiff-Appellee
    Atty. Wesley Johnston, P.O. Box 6041, Youngstown, Ohio 44501, Atty. Eric Hall, P.O. Box 232, Medina, Ohio 44258, For Defendant-Appellant
   JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

OPINION

ROBB, P.J.

{¶ 1} Defendant-Appellant Devin Telego appeals his conviction of felony child endangering in the Mahoning County Common Pleas Court. He raises prosecutorial misconduct regarding certain questions asked of him when he testified in his own defense. He also contends his attorneys rendered ineffective assistance of counsel by failing to retain a medical expert and by failing to request a sanction after one of the prosecution's medical experts was not present to testify at the end of the first day of trial. For the following reasons, Appellant's conviction is affirmed.

STATEMENT OF THE CASE

{¶ 2} On January 10, 2016, Appellant and his girlfriend brought their three-month-old child to the emergency room at St. Elizabeth Health Center in Austintown. The emergency room physician ordered a CAT scan of the head, which showed a "brain bleed." (Tr. 166, 170). The scan showed fresh blood and evidence of older blood. (Tr. 171). A decision was made to transport the baby to Akron Children's Hospital in Akron. The Austintown police were called, and a detective interviewed the parents at the local hospital. The mother showed the detective a photograph of the smiling child taken one hour before they arrived at the hospital. (Tr. 140).

{¶ 3} Appellant told the detective the baby had been fussy for the past few days. Just prior to coming to the hospital, his girlfriend and her friend went to the store, and he stayed home with the baby. He left his second floor apartment to let his dog outside. (Tr. 137). When he came back, it appeared something was wrong with the baby. He said the baby was not breathing, and he performed CPR. (Tr. 138). He reported the baby then seemed fine but was crying. (Tr. 139).

{¶ 4} The director of pediatric neurosurgery at Akron Children's Hospital observed the child in acute distress from intracranial hypertension (high pressure in the head) due to the subdural hematoma seen on the CAT scan. (Tr. 181). The treatment for a subdural hematoma ranges from observation to surgery, depending on the size and patient's symptoms. (Tr. 183). The baby's condition was life threatening with the bleeding and the clot pushing the brain over to suppress respiratory and heart drive functions. (Tr. 187, 215). In order to evacuate the hematoma, the neurosurgeon performed a craniectomy (removing a section of skull bone), opened the dura (the brain covering), suctioned the liquid blood, and removed the clotted blood. (Tr. 183-184). During surgery, she was able to confirm the presence of an older injury (the blood clot ) and a newer, acute injury (the active bleeding) as seen in the CAT scan. (Tr. 184-185, 189).

{¶ 5} The neurosurgeon explained how the older blood clot separated the dura from the brain causing a space where large blood vessels are located and stretching those vessels, which contributed to the sheering of two blood vessels from their anchor. (Tr. 197, 208-209). According to her opinion, the older trauma may have occurred two to three weeks earlier, and the new trauma occurred within hours of the baby coming to the hospital. (Tr. 184-185, 188-189, 208). The neurosurgeon opined, even if the prior injury made the blood vessels more susceptible to a new bleed, the amount of force required to rip the blood vessels from their anchor would be enough to cause a subdural hematoma regardless of whether an old subdural hematoma existed. (Tr. 210). The trauma required to cause each condition is not something experienced in the normal life of a three-month-old baby. (Tr. 212).

{¶ 6} After surgery, the baby was evaluated by the director of the Child Advocacy Center of Akron Children's Hospital (Boardman). The baby's breathing was still being assisted after surgery, and the baby exhibited an abnormal foot reflex (clonus), which suggested a neurological injury from the brain moving. (Tr. 292, 296-297). He believed the older brain injury could have occurred as early as three to ten days before the new injury. (Tr. 294). A violent shaking is the predominant cause of subdural hematoma in children of this age. (Tr. 293). In addition to the conditions noted in radiology and surgery, retinal hemorrhages were found in a pattern suggestive of a violent shaking; other causes were not indicated by the blood work. (Tr. 294-295, 320-321). This physician said the shaking necessary to cause the baby's subdural hematoma was such that a reasonable person would clearly know they are likely to harm or kill the baby. (Tr. 293). He diagnosed a shaking injury or abusive head trauma (through child abuse). (Tr. 299).

{¶ 7} The detective interviewed Appellant within a week of first speaking to him at the emergency room. Appellant insisted he did not shake the baby. (Tr. 142). He explained to the detective how he played with or calmed the baby by playing airplane. Appellant demonstrated the move for the detective, and the detective demonstrated it for the jury. He would hold the baby chest high, drop the baby in a free fall, and catch the baby before he hit the floor. (Tr. 142-144). Appellant said he would bounce while holding the baby close. (Tr. 143, 158).

{¶ 8} In May 2016, Appellant was indicted on three alternative counts of child endangering for the injury occurring on or about January 10, 2016: (1) creating a substantial risk to his child by violating a duty, a third-degree felony due to the serious physical harm; (2) child abuse, a second-degree felony due to the serious physical harm; and (3) child abuse by torture or cruelty, a second-degree felony due to the serious physical harm. See R.C. 2919.22(A), (B)(1), (B)(2), (E). The above testimony was presented by the state at the October 2016 jury trial, along with the following additional testimony.

{¶ 9} Appellant's girlfriend (the baby's mother) testified she lived with Appellant and their baby in Austintown at the time of the baby's injury. The baby's mother worked until 1:00 or 2:00 p.m. on Sunday, January 10, 2016. Appellant was off work on Sunday, and he stayed home with the child. The baby's mother said: the baby was "really fussy" when she got home; the baby fell asleep for 20 minutes after she fed him and woke up crying for hours; and he was usually a "really good baby." (Tr. 221, 224). She got the baby to smile at 7:19 p.m. and took a photograph of him smiling, which she showed to the detective and which was introduced as an exhibit at trial. (Tr. 235). Her friend came over to visit. Around 8:00 p.m., she put the baby in an upright child seat in the living room and went to the gas station with her friend; she estimated they were gone for 20 minutes. (Tr. 221, 225).

{¶ 10} When they returned from the store, Appellant was frantically pacing between the living room and dining room; she said he was trying to locate his phone to call 911. (Tr. 228, 245). She asked if Appellant put the baby to bed, and he responded, "no, he's freaking out." (Tr. 228). She heard "weird noises" coming from the bedroom and ran to find the baby with his eyes closed and producing a "weird cry" or moan she "never heard before." (Tr. 228-229). When she picked up the baby, his head fell back and his eyes did not open. (Tr. 229). Her first thought was to bring the baby to the emergency room. She described Appellant as scared. (Tr. 230). At some point, Appellant voiced the baby would be fine and told her he saw the baby's eyes open. She did not see this occur. When the baby made the noise again, she put him in his car seat carrier to leave. When asked if she or Appellant ever abused the child, she answered in the negative. (Tr. 246).

{¶ 11} Her friend watched the child for them when they both worked. The friend testified the baby seemed well when she stopped over to visit that Sunday. When they returned from the short trip to the gas station, Appellant was pacing in the living room. The friend said Appellant did not say anything about the baby. (Tr. 255). She followed the baby's mother who ran into the bedroom upon hearing the baby. (Tr. 256, 259). She said the baby was unconscious and struggling to breathe by gasping. (Tr. 251, 256). The friend testified the baby's mother kept asking Appellant what was wrong with the baby, and he responded by punching a hole in the wall. (Tr. 261-262). When the baby's mother placed the baby in the car seat, the friend went to her vehicle to install the car seat base. When she reentered the apartment, Appellant had the baby out of the car seat saying he was fine, which she found odd. The baby's mother put him back in the car seat, and they all left for the emergency room. (Tr. 257).

{¶ 12} Appellant took the stand in his own defense. He noted he worked all day on Friday, and the baby's mother worked in the morning, during which time the friend watched the baby. (Tr. 337). Appellant retrieved the baby and the baby's mother from her father's house at 9:30 p.m. on Friday. He said the baby felt hot and did not eat well. (Tr. 338-339). He was with the baby Saturday while the baby's mother worked. He said the baby woke up every five minutes Saturday night and he slept holding him in a chair. (Tr. 341-342). On Sunday, the baby would only sleep in his arms. He retrieved the baby's mother from work around 2:00 p.m. He said a car ran a red light on their way home, causing him to slam on the brakes; he said the baby slept through this. (Tr. 344). The friend came over on Sunday. Appellant testified the three of them all played with the baby using the airplane ride described earlier. (Tr. 348).

{¶ 13} When the girls left for the store, Appellant made the baby a bottle and propped it up for the baby in the bedroom; he said the baby was grumpy. (Tr. 350-351). When he returned from letting the dog outside, the baby was crying, sweaty, and hot. He said nothing would work to calm the baby, such as rocking, bouncing on his shoulder, and airplane. He said the baby then passed out and stopped breathing while he was holding him. (Tr. 353). Appellant described how he performed CPR with two presses of two fingers and a breath in the mouth; he said the baby gasped for air after the second sequence. He testified he put the baby in the playpen in order to look for his phone to call for an ambulance, at which point the baby's mother and the friend returned from the store. (Tr. 355). He said the baby's mother asked him what was wrong when she saw him with his hands on his head and tears on his face, and he said the baby was in the bedroom. (Tr. 355-356). He explained he removed the child from the car seat when he saw him open his eyes for a second and smile. Appellant attested he did not cause the trauma to the baby. (Tr. 359). He also denied punching a hole in the wall. (Tr. 362).

{¶ 14} The jury found Appellant guilty of count one child endangering for recklessly creating a substantial risk to the health or safety of his child by violating a duty of care, protection, or support which resulted in serious physical harm. See R.C. 2919.22 (A), (E)(2)(c) (elevating a first-degree misdemeanor to a third-degree felony where there was serious physical harm). The jury could not reach a verdict on counts two and three, the second-degree felony child abuse charges. The state agreed no subsequent trial would occur. (Tr. 432). The court sentenced Appellant to the maximum prison term of 36 months. Appellant filed a timely notice of appeal from the October 13, 2016 sentencing entry.

ASSIGNMENT OF ERROR ONE: PROSECUTORIAL MISCONDUCT

{¶ 15} Appellant sets forth two assignments of error, the first of which contends:

"The State of Ohio committed prosecutorial misconduct by cross-examining Defendant-Appellant on alleged photographs which were never introduced as evidence during the trial and misstated witness testimony. Said trial misconduct constituted plain error."

{¶ 16} As aforementioned, testimony was presented by the friend of the baby's mother. When asked if Appellant explained what happened to the baby upon their return from the store, she answered: "No. [The baby's mother] kept asking him, you know, what's wrong with [the baby]. And Devin punched a hole in his wall." (Tr. 261). She was then asked, "You said that Devin punched a hole in the wall?" to which she responded, "Yes, he did." An objection was entered when she was asked why Appellant did this. The court said she could answer if she knew why. (Tr. 262). She suggested she did not know why he punched the hole in the wall but it appeared to be a reaction to the baby's mother raising her voice. (Tr. 262-263).

{¶ 17} In cross-examining Appellant, the prosecution asked if people become irritable when they do not sleep. After he agreed, the following took place:

Q Now, you heard the testimony from [the friend] that she saw you punch a hole in the wall when she and [the baby's mother] arrived home, correct?
A I did not.
Q You did not do that?
A No, I did not.
Q Okay. So if I have photographs of a hole punched in the wall, those are made up?
A Yes. (Tr. 362-363).

{¶ 18} Appellant raises two arguments. The first argument is based upon a misreading of the friend's testimony. He states the prosecution mischaracterized her testimony by asking him if he heard her testify she saw him punch a hole in the wall because she previously testified she did not know if Mr. Telego had punched a hole in the wall. However, as can be seen from our review of the testimony, she twice said he punched a hole in the wall and suggested she was not exactly sure "why" he did so. As such, there was no mischaracterization of her testimony.

{¶ 19} The second argument is based upon the prosecutor's reference to photographs which were not introduced into evidence. Appellant suggests there were no such photographs (calling them "alleged photographs") and accuses the state of misconduct. He asserts the reference to photographs never placed in evidence erroneously demonstrated to the jury that he lied to them about punching a hole in the wall, which seriously undermined and damaged his credibility. He concludes this violated his right to a fair trial. Appellant recognizes the absence of an objection on this topic below and asserts plain error under Crim.R. 52(B), which states: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

{¶ 20} The state responds the prosecution must have a good faith basis for its questions but need not lay an evidentiary foundation for every question. The state urges the friend's testimony provided a factual basis for the question asked during cross-examination of Appellant. The state concludes the question did not meet the test for prosecutorial misconduct as a contested remark must be improper and affect substantial rights but the remark here was harmless, considering the friend's testimony. See Crim.R. 52(A) ("Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.").

{¶ 21} In general, the failure to object to prosecutorial questioning at trial waives all but plain error. State v. Ballew , 76 Ohio St.3d 244, 254, 667 N.E.2d 369 (1996). "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Landrum , 53 Ohio St.3d 107, 111, 559 N.E.2d 710, 720 (1990), quoting State v. Long , 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804 (1978), paragraph three of the syllabus. An appellate court's invocation of plain error is discretionary and requires the existence of an obvious error which affected substantial rights. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23.

{¶ 22} A claim of prosecutorial misconduct is not reversible unless the prosecutor's challenged act injected the trial with unfairness so as to constitute a denial of due process. State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 257. A two-pronged test is applied asking: (1) whether the conduct was improper, and (2) whether it prejudicially affected the defendant's substantial rights considering the context of the entire trial. Id. The key concern is "the fairness of the trial, not the culpability of the prosecutor." State v. Hanna , 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

{¶ 23} "The limitation of * * * cross-examination lies within the sound discretion of the trial court, viewed in relation to the particular facts of the case." State v. Acre , 6 Ohio St.3d 140, 145, 451 N.E.2d 802 (1983). "Cross-examination shall be permitted on all relevant matters and matters affecting credibility." Evid.R. 611(B). "A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact." Evid.R. 607(B).

{¶ 24} On allegations of prosecutorial misconduct during questioning of the defendant, it has been concluded, "a cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate for the question exists." State v. Gillard , 40 Ohio St.3d 226, 230-231, 533 N.E.2d 272, 277 (1988) (finding it was not prosecutorial misconduct "to ask [the defendant] questions without presenting evidence of the allegations implied therein after [the defendant] had denied them"). The Court pointed out how "effective cross-examination often requires a tentative and probing approach to the witness' direct testimony, and this cannot always be done with hard proof in hand of every assumed fact." Gillard , 40 Ohio St.3d at 231, 533 N.E.2d 272, quoting Hazel v. United States , 319 A.2d 136, 139 (D.C.App.1974).

{¶ 25} Furthermore, where the prosecutor's good-faith basis for asking the contested questions of the defendant was not challenged below, the reviewing court is to presume the prosecutor had a good faith basis. Gillard , 40 Ohio St.3d at 231, 533 N.E.2d 272 (reversing the court of appeals). See also McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508 at ¶ 258 ("Because [the defendant] did not raise this objection at trial, the prosecutor did not have an opportunity to explain the basis for his questions on the record. Under these circumstances, we presume that a good-faith basis existed.").

{¶ 26} Here, the prosecutor's good faith basis for asking about Appellant punching a hole in the wall was contained in the record. And, the prosecutor was not required to lay an evidentiary foundation by introducing photographs, even when he said, "If I have photographs * * *." Appellant essentially argues the prosecutor improperly implied the actual existence of photographs of a hole in Appellant's wall without a good faith basis for doing so (as there was no evidence photographs existed). Although challengers on this topic can protest innuendo, we note the prosecutor's question was conditional as it began with, "So if I have photographs * * *" (which could be considered distinct from, "So the photograph I have * * *"). We additionally note defense counsel chose to address the topic in closing argument by stating the prosecutor "tried an old prosecutor trick" by asking the defendant "if I have pictures of it, then they're wrong?" Defense counsel stated: "There are no pictures. There were no pictures. And there was never a hole in the wall. Because [the friend] is lying for reasons known only to her." (Tr. 381).

{¶ 27} It is unknown whether there were photographs of the hole due to the lack of an objection. We are instructed to presume a good faith basis in such a scenario. Moreover, considered in the context of the entire trial, the contested question would not have deprived Appellant of a fair trial even if there were no photographs. A witness testified Appellant punched a hole in his wall upon being questioned by the baby's mother (in an upset and raised voice) about what was wrong with their unconscious three-month-old child as she was preparing to bring the child to the emergency room. The crux of the challenged question had a rational basis. Appellant's substantial rights were not affected. Accordingly, the trial court was not required to recognize plain error on this topic, and we do not find plain error. This assignment of error is overruled.

ASSIGNMENT OF ERROR TWO: INEFFECTIVE ASSISTANCE

{¶ 28} Appellant's second assignment of error alleges:

"DEFENDANT-APPELLANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION."

{¶ 29} We review a claim of ineffective assistance of counsel under a two-part test which requires the defendant to demonstrate: (1) trial counsel's performance fell below an objective standard of reasonable representation; and (2) prejudice arose from the deficient performance. State v. Bradley , 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs must be established; if the performance was not deficient, then there is no need to review for prejudice and vice versa. State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

{¶ 30} In evaluating the alleged deficiency in performance, our review is highly deferential to counsel's decisions as there is a strong presumption counsel's conduct fell within the wide range of reasonable professional assistance. Bradley , 42 Ohio St.3d at 142-143, 538 N.E.2d 373, citing Strickland , 466 U.S. at 689, 104 S.Ct. 2052. We are to refrain from second-guessing the strategic decisions of trial counsel. State v. Carter , 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Instances of debatable trial strategy very rarely constitute ineffective assistance of counsel. See State v. Thompson , 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987). There are "countless ways to provide effective assistance in any given case." Bradley , 42 Ohio St.3d at 142, 538 N.E.2d 373, citing Strickland , 466 U.S. at 689, 104 S.Ct. 2052.

{¶ 31} To show prejudice, a defendant must prove his lawyer's deficiency was so serious that there is a reasonable probability the result of the proceeding would have been different. Carter , 72 Ohio St.3d at 558, 651 N.E.2d 965. Lesser tests of prejudice have been rejected: "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Bradley , 42 Ohio St.3d 136 at fn. 1, 538 N.E.2d 373, quoting Strickland , 466 U.S. at 693, 104 S.Ct. 2052. Prejudice from defective representation justifies reversal only where the results were unreliable or the proceeding was fundamentally unfair due to the performance of trial counsel. Carter , 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart v. Fretwell , 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Furthermore: "A claim of ineffective assistance of counsel in a direct appeal must be established by the evidence in the record." State v. Carter , 2017-Ohio-7501, 96 N.E.3d 1046, ¶ 78, citing, e.g., State v. Hartman , 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001) (if establishing ineffective assistance of counsel requires proof outside the record, then the claim is not properly considered on direct appeal). See also State v. Ishmail , 54 Ohio St.2d 402, 406, 377 N.E.2d 500 (1978) (review is limited to what transpired below as reflected by the record on direct appeal).

{¶ 32} Appellant raises two claims of ineffective assistance of counsel. First, he contends his attorneys should have filed a motion requesting funds for a medical expert and should have retained a medical expert. He reviews the testimony presented by the three physicians called as witnesses by the state. He suggests a medical expert should have been utilized by the defense to rebut their testimony. The state responds the decision could be considered part of the trial strategy and there were no indications of deficiency or prejudice by counsel relying on cross-examination in order to construct a defense.

{¶ 33} "[T]he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel." State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 66 ; State v. Hartman , 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001) ; State v. Nicholas , 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Even if the wisdom of this approach is debatable in a particular case, it must be remembered that debatable trial tactics require deference to counsel's judgment. State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). It is often pointed out defense counsel's decision not to engage its own expert can be considered tactical since the potential expert may uncover evidence further inculpating the defendant. See, e.g. , Hartman , 93 Ohio St.3d at 299, 754 N.E.2d 1150. See also State v. Phillips , 6th Dist. No. WD-16-020, 2017-Ohio-7107, 2017 WL 3382098, ¶ 48 ; State v. Samatar , 152 Ohio App.3d 311, 2003-Ohio-1639, 787 N.E.2d 691, ¶ 90 (10th Dist.). Furthermore, the argument that a defense expert was necessary to impeach the testimony of the state's experts can be considered "purely speculative" where there is no indication in the record who the defense expert should have been or what they would have said. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955 at ¶ 66.

{¶ 34} Here, Appellant was represented by two defense attorneys at trial. Defense counsel relied on the testimony of the three physicians involved in the baby's care and cross-examined each of these witnesses, emphasizing certain testimony provided on direct examination as favorable to the defense, such as the old injury which stretched the blood vessels. The tactic of disputing the treating physicians by calling a defense expert is not a required standard of representation. It is an acceptable tactic to refrain from disputing the medical aspects of their testimony and focus on exactly what the testimony suggests or does not suggest as pertinent to the facts of the particular case at bar. This was the strategy here, as outlined in closing argument. (Tr. 376-377). The decision to utilize the testimony of the three physicians already involved in the baby's care rather than retain another physician was a matter of trial preparation and strategy and did not constitute deficient performance. We note the jury did not return guilty verdicts on the two higher-degreed child endangering counts. Additionally, Appellant has not demonstrated a reasonable probability the result would have been different if a defense expert had been utilized. The value of any potential testimony from some other, unknown physician is speculative. In accordance, Appellant's first argument is without merit.

{¶ 35} Appellant's second argument of ineffective assistance of counsel revolves around the state's final witness, the former director of the Child Advocacy Center. At the time of trial, this physician was working as the chief of child abuse pediatrics at a medical university in South Carolina. He had cerebral palsy and was in a wheelchair. He was subpoenaed to appear to testify at trial on October 3, 2016 at 8:30 a.m. On that day, jury selection began at 8:36 a.m. and was completed at 10:50 a.m. (Tr. 2, 102). After opening statements, the state presented the testimony of the detective, the emergency room physician, the neurosurgeon, the baby's mother, and her friend. At some point, the prosecution advised the court's bailiff that the final witness was on a flight and would not be present to testify until the next morning. At approximately 3:00 p.m., the court sent the jury from the courtroom to address the whereabouts of the prosecutor's final witness.

{¶ 36} The court noted how the jurors had been assured their time would not be wasted. The court also noted the lawyers were asked by the bailiff that morning if there was anything they needed to speak to the court about, but the prosecution did not reveal this issue. (Tr. 264-265). The court reminded the assistant prosecutor: "You don't run my court * * * I need to know what's going on." (Tr. 265). The court inquired: "You knew he wouldn't be here today to testify. * * * When would I get to know that?" (Tr. 266).

{¶ 37} The prosecutor advised the court the witness was on a flight to this area in order to testify in the morning. (Tr. 264). He envisioned the neurosurgeon's testimony would have taken longer, and he did not realize until after her testimony that the final witness might be called the first day of trial. (Tr. 266, 269). The court scolded, "That's not something you do as you go along. It's something I need to know before we start." (Tr. 267). The court noted its options ranging from proceeding without the witness to excusing the jury early and resuming in the morning. (Tr. 265, 267, 269). The court also inquired why the prosecution informed the bailiff the final witness's testimony would take three to four hours. (Tr. 270, 272). The assistant prosecutor said this was the state's primary witness. (Tr. 270). The court voiced suspicion about the motive for what it viewed as an overly-high estimate of the time necessary to examine the witness. (Tr. 273-274).

{¶ 38} The court asked the defense if it wished to say anything before the court decided what to do. Defense counsel said they found out "this morning" the witness would not be available to testify until tomorrow. One of the attorneys noted, "I was quite aware of [the physician's] participation in this trial." He advised, "I'm not going to quarrel with his presentation." He also opined there was "no way" the testimony would take three hours, estimating it would take a maximum of one hour. (Tr. 273).

{¶ 39} The court revealed it was "tempted to impose a sanction" otherwise "you never learn." (Tr. 274-275). In the end, the court recessed for the day and ordered the case to resume at 8:00 a.m. The court limited the state to one hour with the final witness. (Tr. 275). The court warned the state to get timely pre-approval of the court on the matter of witness scheduling in the future. (Tr. 276).

{¶ 40} On appeal, Appellant contends defense counsel should have moved the trial court to impose the sanction of precluding the witness from testifying. However, there is no indication such a request would have been successful based upon any defense argument and thus no indication of deficiency or prejudice. The trial court expressed its displeasure over the perceived disrespect for the court's protocol and scheduling. The concern was not with the effect of the early recess on the defense. There was no issue of notice, i.e., this was not a discovery issue. As defense counsel conceded, he was fully informed the physician would be testifying at trial. Even in the case of a discovery violation, a court should impose the least severe sanction if possible. See State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971 (2013), applying Lakewood v. Papadelis , 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of syllabus.

{¶ 41} Furthermore, the jury would not have attributed the delay to the defense as the court informed the jury the state failed to inform the court its witness was on a plane. (Tr. 276-277). It is noteworthy that the trial would not have concluded on the first day even if the state's witness was immediately available as can be seen by the following facts: the witness would have been called to testify around 3:00 p.m.; the court recessed for the day instead; the court reopened at 8:00 the next morning; and the jury did not reach a verdict until 5:27 p.m. In fact, the defense may have benefitted from the extra time this provided the defendant to prepare for his own testimony, which otherwise would have taken place immediately had the court precluded the state's witness from testifying. Deficient performance is not apparent. In addition, there is no indication the results were unreliable or fundamentally unfair merely because defense counsel did not further encourage the trial court's anger at the prosecution. See, e.g. , Carter , 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart , 506 U.S. at 369, 113 S.Ct. 838. Appellant's second ineffective assistance of counsel argument is without merit, and Appellant's second assignment of error is overruled.

{¶ 42} For the foregoing reasons, the trial court's judgment is affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.

      Gillard was abrogated on other grounds in State v. McGuire , 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997) (on topic of residual doubt instruction for death penalty).