COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67287 MICHELLE HUNTER, ET AL. : : Plaintiffs-Appellees : : JOURNAL ENTRY -vs- : AND : OPINION ARCHIE HARRISON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 30, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT, JUVENILE COURT DIVISION CASE NO. 9171000 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: ALISON LITTLE (#0061568) Assistant County Prosecutor P.O. Box 93894 Cleveland, OH 44104-5894 For Defendant-Appellant: MARK S. FRANK (#0051606) 28001 Chagrin Boulevard, Suite 300 Cleveland, OH 44122 - 2 - 2 SPELLACY, P.J.: Defendant-appellant Archie Harrison appeals from a judgment finding him the father of plaintiff-appellee Anthony Hunter and the denial of his motion for new trial filed under Civ.R. 59(A)(8). Archie raises three assignments of error: I. THE TRIAL COURT ERRED, TO PREJUDICE OF THE DEFENDANT-APPELLANT, BY GRANTING JUDGMENT IN FAVOR OF THE PLAINTIFF-APPELLEE, WHEN SUCH JUDGMENT WAS NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE AT TRIAL. II. THE DECISION OF THE TRIAL COURT SHOULD BE OVER- TURNED BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AND A NEW TRIAL SHOULD BE GRANTED IN THIS MATTER. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT, BY NOT GRANTING DEFENDANT- APPELLANT'S MOTION TO CONSIDER ADDITIONAL EVI- DENCE. I. After plaintiffs-appellees Michelle Hunter, the mother, Anthony Hunter, the child, and the Cuyahoga County Department of Human Services brought this paternity action, a bench trial was held. The following evidence was adduced at trial: Archie and Michelle engaged in sexual intercourse around the time of Anthony's conception and scientific testing is unable to exclude Archie as the father. Archie has an identical twin, Arthur Harrison. Archie and Arthur share identical DNA and scientific testing would result in identical test results concerning paternity. - 3 - 3 Michelle testified that Archie was the only man she had sexual intercourse with during the four months surrounding Anthony's con- ception. Michelle further testified that she and Archie dated for two years and that he came to the hospital when Anthony was born. Archie testified that he dated Michelle for only one month. Archie further testified that at one point he left Michelle at Arthur's home after being confronted by his wife, Annie. Both Archie and Annie testified that when they returned several days later Michelle was still at Arthur's home. Annie further testified that Michelle was wearing only a tee shirt. II. In his first assignment of error, Archie contends the judgment is against the weight of the evidence. "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be re- versed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus; see, also, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Here, competent and credible evidence going to all the essen- tial elements for establishing paternity supports the judgment. Accordingly, Archie's first assignment of error is not well taken. - 4 - 4 III. In his second assignment of error, Archie contends he was denied the right to effective assistance of counsel. A defendant has a right to counsel when, as here, the state is a plaintiff in a paternity action. State, ex rel. Cody v. Toner (1983), 8 Ohio St.3d 22, syllabus. The right to counsel encom- passes the right to effective assistance of counsel. Jones v. Lucas Cty. Childrens Services Bd. (1988), 46 Ohio App.3d 85, 86; see, also, McMann v. Richardson (1970), 397 U.S. 759. This right is not altered by the defendant retaining counsel. State v. Hester (1976), 45 Ohio St.2d 71, 79. The standard for effective assistance of counsel in a criminal context applies to actions brought by the state to terminate parental rights. Jones, 46 Ohio App.3d at 86. We conclude, there- fore, that the standard is equally applicable here. See Crenshaw v. Jackson (Dec. 1, 1989), Lucas App. No. L-89-086, unreported, and Workman v. Santiago (Dec. 7, 1993), Franklin App. No. 93-AP-475, unreported. (Applying criminal standard for effective assistance of counsel in paternity actions.) In a criminal context, a successful ineffective assistance of counsel claim must demonstrate the counsel's assistance was defi- cient and prejudicial. Strickland v. Washington (1984), 466 U.S. 668, 688; State v. Cook (1992), 65 Ohio St.3d 516, 524. Deficient performance occurs when the counsel fails to function as the - 5 - 5 "counsel" guaranteed by the Sixth Amendment. Strickland, Cook. Prejudice results when the deficient performance deprives the defendant of a fair trial. Strickland, Cook. Archie argues he received ineffective assistance of counsel because his trial counsel requested a bench trial, failed to call Arthur as a witness or join him as a defendant, failed to request a transcript, and failed to investigate whether he was sterile. We find Archie received effective assistance of counsel. Requesting a bench trial and not calling Arthur as a witness or joining him as a defendant constitute reasonable trial tactics. Failure to request a transcript was not prejudicial. Finally, a review of the trial counsel's failure to investigate whether Archie was sterile calls for evidence beyond the record. Accordingly, Archie's second assignment of error is not well taken. IV. In his third assignment of error, Archie contends the trial court erred when it denied his motion for new trial filed under Civ.R. 59(A)(8). We review the denial of a motion for new trial based on newly discovered evidence for abuse of discretion. Patterson v. Ravens- Metal Prod., Inc. (1991), 72 Ohio App.3d 216, 232. Civ.R. 59(A)(8) provides: (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: *** - 6 - 6 8. Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial; ***. Sheen v. Kubiac (1936), 131 Ohio St. 52, paragraph three of the syllabus, held that: To warrant the granting of a motion for a new trial based on the ground of newly dis- covered evidence, it must be shown that (1) the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discov- ered since the trial, (3) it must be such as could not in the exercise of due dili- gence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumu- lative to former evidence, and (6) it must not merely impeach and contradict the former evidence. See, also, Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 410-411. Archie based his motion on Arthur's affidavit averring that he had sexual intercourse with Michelle around the time of Anthony's conception and that he had not been asked to testify. We find no abuse of discretion by the trial court in denying Archie's motion. The evidence was discoverable with due diligence. Accordingly, Archie's third assignment of error is not well taken. Judgment affirmed. - 7 - 7 It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court, Juvenile Court Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., and DIANE KARPINSKI, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .