COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68172 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DANA STRONG : : Defendant-appellant : : DATE OF ANNOUNCEMENT : AUGUST 10, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Municipal Court : Case No. 94-CRB-27202 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: CAROLYN WATTS-ALLEN, ESQ. JOHN A. FRENDEN, ESQ. Cleveland City Prosecutor 1150 Leader Building 8th Floor Justice Center Cleveland, OH 44114 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, C.J. Defendant-appellant, Dana Strong ("appellant") appeals from his conviction of criminal damaging in violation of Cleveland Criminal Ordinance 623.02. The following evidence was adduced at appellant's bench trial. Gary Anderson testified that he lives next door to the appellant and a fence separates the property lines. Anderson stated that on July 31, 1994, he was in his house and observed appellant mowing his lawn. Appellant then opened the gate to the fence and slammed it against his son's automobile which was parked in Anderson's driveway. Anderson then went outside and informed the appellant that if he wanted him to move the car all he had to do was ask. Appellant then said "[w]ell, no one saw me do it." Anderson testified that his son then came outside and confirmed that the dent and scratch were not on his car prior to appellant hitting the car with the gate. Anderson and his son obtained two estimates for repairing the car: one was for $100 and the other was for $117. Appellant testified that on July 31, 1994, he was mowing his lawn and needed to move the gate in order to cut the grass under the gate. Appellant stated that he opened the gate but denied hitting the car with the gate. Appellant also stated that Anderson couldn't have seen him hit the car with the gate because his view was obstructed. Appellant's sole assignment of error states: - 3 - DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE LACK OF EFFECTIVE ASSISTANCE OF LEGAL COUNSEL. Appellant maintains that he was denied a fair trial due to the lack of effective assistance of counsel. Specifically, appellant asserts that his counsel's failure to object to the admission of the repair estimates which were not obtained by Anderson and Anderson's testimony regarding his son confirming the damages deprived him of a fair trial. In order to establish a claim of ineffective assistance of counsel, the burden is on the defendant to show that counsel's performance was deficient and that such deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668; State v. Johnson (1986), 24 Ohio St.3d 87, 89. Defense strategy will not be second-guessed by reviewing courts when determining effective assistance of counsel. Strickland, supra, at 2065; State v. Smith (1991), 75 Ohio App.3d 73, 76. Appellant claims that the city would not have been able to prove damages if the repair estimates and the hearsay testimony regarding the damages were not admitted. We disagree. There was overwhelming evidence that appellant hit the car with the fence. Anderson testified that he observed the appellant push the fence into his son's car. Anderson also testified that he immediately spoke with the appellant after the incident and the appellant said "no one saw me do it," appellant didn't deny making this statement. - 4 - Furthermore, Anderson initially testified that he and his son obtained estimates. The estimates showed damages in the amount of $100 to $117. The trial court, as trier of the facts could ascertain from Anderson's testimony that he had personal knowledge concerning the amount of damages to his son's car. Moreover, the alleged hearsay testimony concerning the damages to the car is not prejudicial. The testimony showed that there was circumstantial evidence that appellant caused the damage to the car. Anderson's testimony regarding what his son said was not controlling in this case. Therefore, appellant has failed to prove that his counsel's performance was deficient and such deficient performance prejudiced his defense. Moreover, after a thorough review of the transcripts it is clear that appellant's trial strategy was that the matter was a civil matter for small claims court and not a criminal matter. Therefore, defense counsel chose not to object to the repair estimates and the alleged hearsay testimony as a matter of trial strategy. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant its 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 Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J. O'DONNELL, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .