State v. Kennard, 29201

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWELBAUM, J.
Citation2022 Ohio 2055
PartiesSTATE OF OHIO Plaintiff-Appellee v. TRAVIS KENNARD Defendant-Appellant
Decision Date17 June 2022
Docket Number29201


STATE OF OHIO Plaintiff-Appellee

TRAVIS KENNARD Defendant-Appellant

No. 29201

Court of Appeals of Ohio, Second District, Montgomery

June 17, 2022

Criminal Appeal from Municipal Court Trial Court Case No. 2021-CRB-1986

BARBARA J. DOSECK, Atty. Reg. No. 0079159, STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, Attorneys for Plaintiff-Appellee

PAUL E. WAGNER, Atty. Reg. No. 0067647, Attorney for Defendant-Appellant




{¶ 1} Defendant-appellant, Travis Kennard, appeals from his conviction for domestic violence in the Dayton Municipal Court following a bench trial; he had been found guilty of domestic violence and assault, but the trial court merged those offenses for sentencing. In support of his appeal, Kennard contends that the trial court's guilty verdicts were not supported by sufficient evidence and were against the manifest weight of the evidence. Kennard also contends that his trial counsel provided ineffective assistance by having him testify at trial and by failing to advise him that he had a right not to testify. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On June 13, 2021, Kennard was charged in the Dayton Municipal Court with one first-degree misdemeanor count of domestic violence in violation of R.C. 2919.25(A) and one first-degree misdemeanor count of assault in violation of R.C. 2903.13(A). The charges stemmed from allegations that on the night of June 11, 2021, Kennard punched his live-in girlfriend in the head multiple times with his fist, causing her to fall and injure her head and lower back. Kennard pled not guilty to the charges and the matter proceeded to a bench trial.

{¶ 3} At trial, the State presented testimony from the victim of the offenses in question, S.W., and testimony from one of the investigating police officers, Officer Joshua Blankley of the Dayton Police Department. The State also called Dominique Lemasters,


a neighbor who allegedly witnessed the altercation between Kennard and S.W. In addition to these witnesses, Kennard testified in his own defense. The witnesses provided the following testimony at trial.

{¶ 4} S.W. testified that Kennard was her boyfriend and that she and Kennard had lived together since 2019 in a Dayton residence with her mother, brother, nephew, and two nieces. With regard to the June 11, 2021 incident in question, S.W. testified that she had been highly intoxicated that night and only remembered speaking to police officers after sustaining injuries to her head and back. Specifically, S.W. recalled having a gash on the right back side of her head that was bleeding and a swollen and bruised lower back. S.W. testified that she did not remember how she received these injuries but did recall hitting the concrete steps outside the door to her residence.

{¶ 5} Dominique Lemasters testified that she lived three houses down from Kennard and S.W. on the same side of the street. Lemasters also testified that she had no personal relationship with either Kennard or S.W. Lemasters claimed that, prior to the incident in question, she had only spoken to S.W. a couple of times in passing. As for Kennard, Lemasters testified that she knew he resided with S.W., but did not know his name.

{¶ 6} Concerning the night of June 11, 2021, Lemasters testified that she was sitting outside on her front porch smoking a cigarette when she saw an altercation between Kennard and S.W. Lemasters testified that she saw Kennard punch S.W. in the head at least twice while they were standing near their next-door neighbor's front yard. According to Lemasters, Kennard punched S.W. in the back or side of the head with a


closed fist, which caused S.W. to fall down onto some concrete steps in front of their house. Lemasters testified that she clearly saw Kennard punch S.W. twice before Kennard moved his body in a manner that blocked her view of what was happening. Lemasters also testified that Kennard yelled "you're such a bitch" multiple times while he punched S.W. Trial Tr. (June 22, 2021), p. 23.

{¶ 7} Lemasters testified that after Kennard punched S.W., she saw Kennard run into the middle of the street and scream at some neighbors who had seen the altercation from inside their vehicle. Lemasters also testified that when she saw that S.W. had been knocked down, she went over to assist S.W. on the concrete steps. Lemasters testified that S.W. did not get up right away, but eventually sat up from the steps and looked very dazed. During that time, Lemasters saw that S.W.'s head was bleeding and that S.W. had blood dripping off of her hand and down her neck. Lemasters testified that she gave a neighbor named "Jamie" her cell phone to call the police while she stayed with S.W. Tr. at 24.

{¶ 8} Continuing, Lemasters testified that while she was with S.W., Kennard came back from the street and ran over to S.W. During that time, Lemasters heard Kennard make statements indicating that he did not do anything wrong and that S.W. was crazy. In an effort to prevent an altercation with Kennard, Lemasters testified that she called her boyfriend over to help with the situation. Lemasters testified that she and her boyfriend tried to keep Kennard from getting to S.W. by placing their bodies in between them. Lemasters testified that she stayed with S.W. until S.W. saw blood on her hand and started to "freak out." Tr. at 25. Lemasters testified that when S.W. saw the blood, she


wanted to see her mother and ran inside her house with Kennard following her.

{¶ 9} Lemasters testified that, after S.W. and Kennard went inside their house, she stood outside the residence while waiting for the police to arrive. Lemasters testified that during that time, she saw another altercation between Kennard and S.W. through their glass storm door. Specifically, Lemasters saw Kennard grab the back of S.W.'s head by her hair and throw S.W. to the ground. Shortly thereafter, Lemasters noticed that the police had arrived down the street at the wrong residence. Lemasters testified that she went over to the police and directed them to Kennard and S.W.'s house. Lemasters also testified that she later provided the police with a statement of her observations.

{¶ 10} Officer Blankley of the Dayton Police Department testified that on the night in question, he and Officer Scotty Fair were dispatched to Kennard and S.W.'s residence on the report of a fight. Officer Blankley testified that he talked with S.W. after medics treated her inside of her residence. During that time, Officer Blankley observed that S.W. appeared to be intoxicated and that she had a head injury. Specifically, Officer Blankley testified that he observed a one-inch laceration on S.W.'s scalp that was bleeding through her hair. Officer Blankley also testified that S.W. told him that she had injured her back or her side. Officer Blankley, however, did not see any physical injury to that effect. Officer Blankley also testified that S.W. was uncooperative in that she would only discuss her injuries and not the situation with Kennard.

{¶ 11} The State rested its case after presenting the aforementioned testimony. Kennard then moved for a judgment of acquittal under Crim.R. 29 on grounds that Lemasters' testimony as to how S.W. was injured did not make sense and was insufficient


to find him guilty of domestic violence and assault. Specifically, Kennard argued that S.W. could not have fallen backwards and injured the back of her head on the concrete steps if Kennard had hit her on the back of the head as testified to by Lemasters. The trial court did not find Kennard's argument persuasive and overruled his Crim.R. 29 motion. Kennard thereafter took the witness stand and testified in his defense.

{¶ 12} During his testimony, Kennard confirmed that S.W. had been his girlfriend for over two years and that he and S.W. had been together at their home on the night of June 11, 2021. Kennard testified that on that night, he and S.W. were eating nachos and drinking shots upstairs when S.W. left to get some cigarettes with her niece. Kennard testified that about 10 or 15 minutes after S.W. left, he heard a commotion outside. Kennard claimed that when he went outside to see what was going on, he saw S.W. "back bent" over the concrete steps to their front porch. Tr. at 38. Kennard testified that he did not actually see S.W. fall on the steps, but assumed that was how S.W. became injured.

{¶ 13} Kennard also testified that the neighbors to the side of his house and some people in a car across the street were yelling and causing a lot of commotion. Kennard claimed that when he went over to ask S.W. if she was ok, the neighbors started pushing him out of the way and accusing him of injuring S.W. Kennard claimed that he then went into the street to see who was yelling inside the car. Upon doing so, Kennard claimed that he was threatened with a gun by an individual named "Janie Williams." Tr. at 40. Throughout his testimony Kennard maintained that he had not hit or pushed anyone on the night in question. Kennard also claimed that he had never seen Lemasters before


the day of trial.

{¶ 14} After hearing all the testimony, the trial court found Kennard guilty of both domestic violence and assault. In reaching that decision, the trial court noted that Kennard's testimony did not make sense and was not credible. As a result, the trial court relied on Lemasters' testimony, which the trial court found credible.

{¶ 15} Once the guilty verdicts were announced, the trial court ordered a presentence investigation report and scheduled the matter for sentencing. At sentencing, the State conceded that the domestic violence and assault offenses were allied offenses of similar import that merged for purposes of sentencing, and it elected to have Kennard...

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