[Cite as State v. Jones, 2011-Ohio-6215.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-11-06

        v.

TIMOTHY ALLEN JONES,                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 09CR0066

                                      Judgment Affirmed

                           Date of Decision: December 5, 2011




APPEARANCES:

        Timothy Allen Jones, Appellant

        Brent W. Yager and Gregory A. Perry for Appellee
Case No. 9-11-06



SHAW, J.

       {¶1} Jones appeals the February 10, 2011 judgment of the Marion County

Court of Common Pleas overruling his petition for postconviction relief.

       {¶2} On April 16, 2009, Jones was indicted on one charge of felonious

assault for beating another inmate, Joshua Criswell, while Jones was incarcerated

for domestic violence charges. Criswell’s spleen was ruptured as a result of the

attack. The incident was recorded on the surveillance cameras in the jail and

Criswell’s injuries were documented and treated by the jail nurse and other

medical personnel. The indictment was later amended to include a repeat violent

offender specification.

       {¶3} On January 11, 2010, after being convicted by a jury, the trial court

sentenced Jones to a prison term of eight years for the felonious assault conviction

and designated him as a repeat violent offender, which added four years to his

sentence, for a total twelve-year prison term.         Jones appealed the judgment

imposing his conviction and sentence to this Court, raising seven assignments of

error. The assignments of error claimed that the trial court erred in overruling

some of Jones’ pretrial motions, challenged the adequacy of the evidence before

the jury and the trial court to convict him, alleged that trial court permitted the jury

to hear inadmissible evidence during the trial, and asserted that Jones was

deprived of effective assistance of counsel.

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         {¶4} On June 23, 2010, Jones filed a petition for postconviction relief

alleging that his trial counsel provided him ineffective assistance of counsel.

         {¶5} On October 4, 2010, this Court overruled Jones’ seven assignments of

error and affirmed the judgment of the trial court.

         {¶6} On December 22, 2010, Jones, without permission for leave from the

trial court, filed an amended petition for postconviction relief raising two

additional grounds for relief, which included an allegation that the prosecution

failed to preserve exculpatory evidence.

         {¶7} On February 8, 2011, the prosecution filed its response to Jones’

petition for postconviction relief.

         {¶8} On February 10, 2011, the trial court ruled on Jones’ petition for

postconviction relief. In a thorough opinion, the trial court addressed each of

Jones’ supporting grounds and overruled the petition finding it not well-taken.

Specifically, the trial court determined that Jones’ claims were barred by res

judicata.

         {¶9} Jones subsequently appealed the decision of the trial court overruling

his petition for postconviction relief, raising the following assignments of error.1


1
  We note that Jones submitted two briefs on appeal. His first brief was submitted on July 7, 2011, raising
six assignments of error. However, this Court did not accept Jones’ first brief because it exceeded the local
page limit rule. Jones filed his second brief on July 27, 2011, amending his brief to raise just three
assignments of error. The prosecution filed its brief on August 18, 2011, responding to the six assignments
of error in Jones’ first brief. However, we will only address the three assignments of error raised by Jones
in his second brief, which is the one that was properly filed in accordance with the local and appellate rules.

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Case No. 9-11-06



                   ASSIGNMENT OF ERROR NO. I

      ATTORNEY JAVIER ARMENGAU WAS INEFFECTIVE AS
      COUNSEL IN THAT HE REFUSED TO OBTAIN AND
      SECURE VIDEO EVIDENCE FROM THE SECURITY
      CAMERA     SYSTEM   AT    THE   MULTI   COUNTY
      CORRECTION CENTER OF THE ALLEGED VICTIM
      JUSHUA [SIC] CHRISWELL [SIC] BODY PUNCHING WITH
      AND BEING ASSAULTING BY OTHER INMATES IN THE
      DAYS PRIOR TO THE INCIDENT INVOLVING THE
      APPELLANT.

                   ASSIGNMENT OF ERROR NO. II

      PROSECUTING ATTORNEY BRENT YAGER FAILED TO
      PRESERVE EXCULPATORY EVIDENCE OR, IN BAD
      FAITH,  FAILED    TO    PRESERVE FOR  TRIAL
      POTENTIALLY USEFUL EVIDENCE AND DISCLOSE IT
      TO THE APPELLANT AFTER HE WAS MADE FULLY
      AWARE OF ITS EXISTENCE.

                   ASSIGNMENT OF ERROR NO. III

      ATTORNEY JON DOYLE WAS INEFFECTIVE AS
      COUNSEL IN THAT HE (A) FAILED THROUGH THE
      PROCESS OF DISCOVERY, TO OBTAIN THE MEDICAL
      RECORDS OF JOSHUA CHRISWELL [SIC] FROM THE
      MULTI-COUNTY CORRECTIONAL CENTER. (B) FAILED
      TO DISCOVER THAT JOSHUA CHRISWELL [SIC] WAS
      INFACT [SIC], BEING TREATED BY THE DOCTOR AT
      THE MULTI-COUNTY CORRECTIONAL CENTER FOR A
      STOMACH PROBLEM ONE DAY PRIOR TO THE
      ALLEGED ASSAULT BY THE APPELLANT AND (C)
      FAILED TO SUBPOENA THE DOCTOR FROM THE
      MULTI-COUNTY     CORRECTIONAL   CENTER   WHO
      TREATED JOSHUA CHRISWELL [SIC] FOR A STOMACH
      PROBLEM AS A WITNESS FOR THE APPELLANT.



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        {¶10} For ease of discussion, we elect to address some of the assignments

of error together.

                         The First and Second Assignments of Error

        {¶11} The first and second assignments of error both relate to Jones’

contention that he could have been exonerated if certain surveillance video from

the jail would have been preserved. Jones alleges that this particular evidence

depicted the victim, Joshua Criswell, engaging in “body punching” with other

inmates days before Jones’ attack on Criswell. Jones claims that his initial trial

counsel provided him ineffective assistance of counsel because he failed to obtain

this evidence before the jail taped over the video.2 Jones also claims that the

prosecution acted in bad faith when it failed to preserve this evidence.

         {¶12} The Supreme Court of Ohio has previously held that “[u]nder the

doctrine of res judicata, a final judgment of conviction bars the convicted

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that was raised or could

have been raised by the defendant at the trial that resulted in that judgment of

conviction or on an appeal from that judgment.” State v. Perry (1967), 10 Ohio

St.2d 175, 180, 226 N.E.2d 104. (Emphasis added). It is well established that res


2
  During the course of the court proceedings, Jones had two different court-appointed attorneys. His initial
attorney in the case was Attorney Armengau. Jones asked him to withdraw from his representation early in
the case. The trial court subsequently appointed Attorney Doyle to represent Jones.

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Case No. 9-11-06



judicata bars the consideration of issues that could have been raised on direct

appeal. State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245, 846 N.E.2d 824, at

¶ 16–17.

       {¶13} Jones was represented by appellate counsel in the direct appeal of the

judgment imposing his conviction and sentence. In addition to the assignments of

error raised by Jones’ appellate counsel, Jones was permitted to submit a

supplemental brief in which he raised and argued four additional assignments of

error. Despite having ample opportunity, none of Jones’ assignments of error

discuss the issue now raised by Jones regarding this surveillance video.           In

addition, Jones has failed to provide any reason why he was unable to properly

raise these arguments in his first appeal. Accordingly, because Jones could have

raised this matter in his direct appeal of the judgment imposing his conviction and

sentence but chose not to, we find that the trial court did not err in concluding that

his claims are now barred by res judicata.

       {¶14} Moreover, we note that Jones and his trial counsel argued the defense

that Criswell’s spleen injury was caused by the roughhousing Criswell allegedly

engaged in with other inmates days prior to Jones’ attack. Even though Jones did

not have the surveillance video, he presented the testimony of three inmates at his

trial, who either engaged in or witnessed the “body punching” of Criswell. In the

end, the jury determined that Jones, not the actions of other inmates, caused

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Case No. 9-11-06



Criswell’s injuries based on the medical evidence presented as well as Criswell’s

own testimony denying that the roughhousing caused his spleen injury. Clearly,

this surveillance video would have been simply cumulative to the evidence

presented by Jones at his trial. For all these reasons, Jones’ first and second

assignments of error are overruled.

                          The Third Assignment of Error

       {¶15} In the third assignment of error, Jones argues that his trial counsel,

Attorney Doyle, was ineffective for allegedly failing to obtain the medical records

kept by the jail and other evidence which Jones claims demonstrated that Criswell

had been taking Zantac, a medication for heartburn and indigestion, around the

time his spleen was ruptured.

       {¶16} In his direct appeal of the judgment imposing his conviction and

sentence, Jones raised this same issue in his fifth assignment of error and we

determined that Jones’ arguments amounted to mere speculation and did not

substantiate a claim of ineffective assistance of counsel. See State v. Jones I, 3rd

Dist. No. 9-10-09, 2010-Ohio-4823. Because Jones has previously litigated this

issue in the direct appeal of his conviction, we conclude that the trial court did not

err in finding that his claim is now barred by res judicata. Jones’ third assignment

of error is overruled.



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       {¶17} Based on the foregoing, the judgment of Marion County Court of

Common Pleas is affirmed.

                                                        Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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