Boscarino v.Warden, Lebanon Correctional Institute

Filing 10

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the C ourt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 6/18/2015. Signed by Magistrate Judge Michael R. Merz on 6/1/2015. (kpf)

N THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NIKOLAOS BOSCARINO,
Petitioner,

:

- vs -

Case No. 3:15-cv-72
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

ERNIE MOORE, Warden,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is an action pursuant to 28 U.S.C. '2254 for a writ of habeas corpus. Petitioner
Boscarino seeks relief from his conviction in the Montgomery County Common Pleas Court and
consequent sentence to seven years imprisonment, now being served in Respondent’s custody.
He pleads the following grounds for relief.
Ground One: The prejudicial effect of allowing evidence
regarding Petitioner’s history as a Mixed Martial Arts fighter
denied Petitioner his right to a fair trial.
Supporting Facts: 1) Petitioner’s counsel filed a motion in limine
in the trial court seeking to exclude this evidence due to its
prejudicial effect; 2) the trial court overruled the motion in limine
and admitted the evidence; 3) the trial court instructed the jury
during voir dire that “ Defendant is a mixed martial arts fighter”; 4)
An investigating officer testified about finding several cards in
Petitioner’s wallet identifying him as a mixed martial arts fighter,
and about doing internet research confirming that Petitioner was a
mixed martial arts fighter; 5) The prosecutor mentioned that
Petitioner was a mixed martial arts fighter twice during his closing
argument; 6) No evidence was presented regarding Petitioner’s
training, experience, or record as a mixed martial arts fighter.

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Ground Two: Petitioner’s trial counsel provided ineffective
assistance due to his failure to renew the objection at trial to
evidence regarding Petitioner’s history as a mixed martial arts
fighter.
Supporting Facts: 1) Petitioner’s counsel filed a motion in limine
in the trial court seeking to exclude this evidence due to its
prejudicial effect; 2) the trial court overruled the motion in limine
and admitted the evidence; 3) the trial court instructed the jury
during voir dire that “Defendant is a mixed martial arts fighter”; 4)
An investigating officer testified about finding several cards in
Petitioner’s wallet identifying him as a mixed martial arts fighter,
and about doing internet research confirming that Petitioner was a
mixed martial arts fighter; 5) The prosecutor mentioned that
Petitioner was a mixed martial arts fighter twice during his closing
argument; 6) Petitioner’s trial counsel failed to object to any of
these references or testimony, thus waiving the issue for any direct
appeal, and forcing Petitioner’s appellate counsel and current
counsel to assert ineffective assistance of counsel.
Ground Three: The evidence presented at trial was insufficient to
support Petitioner’s conviction.
Supporting Facts: 1) No witness was able to testify as to the
cause of Officer’s Smith’s injury to the back of his head, 2) Off.
Smith had no idea how he inured the back of his head, 3) Off.
Smith’s injuries are attributable to other, previous injuries, 4) The
State was required to prove Petitioner knowingly caused serious
physical injury to Off. Smith, 5) Because no evidence was
presented as to the cause of Off. Smith’s concussion to the back of
his head, the State failed to meet its burden beyond a reasonable
doubt.

(Petition, Doc. No. 1.)

Procedural History

This case arises out of an attempted citation of Petitioner for public urination outside
Taggart’s Pub on Patterson Road in Dayton on the morning of August 12, 2011. Out of

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Boscarino’s confrontation with Dayton Police and a pub “bouncer,” he was indicted by a
Montgomery County grand jury on a number of counts, the only one of which relevant here is
felonious assault on a peace officer in violation of Ohio Revised Code § 2903.11(A)(1) with a
repeat violent offender specification.
Defense counsel filed a pretrial motion in limine to exclude any reference to Boscarino’s
status as a mixed martial arts (“MMA”) fighter. After a hearing, Common Pleas Judge Steven
Dankof denied the motion (State Court Record, Doc. No. 7, PageID 93, 235-36). Counsel did
not renew the objection at trial. Boscarino’s MMA status was referred to by the trial judge in
voir dire, by Dayton Detective Gary Engel in testimony, and by the prosecutor in closing
argument, all without objection. Boscarino was convicted by the jury of the felonious assault
charge and separately by the trial judge on the repeat offender specification on which a jury was
waived. He was then sentenced to the seven-year term he is now serving.
Represented by new counsel, Boscarino appealed to the Second District Court of
Appeals, raising as assignments of error (1) that his conviction is supported by insufficient
evidence, (2) that his conviction is against the manifest weight of the evidence, and (3) that he
suffered ineffective assistance of trial counsel when his attorney failed to object at trial to
references to his MMA fighter status. The appellate court affirmed the conviction, State v.
Boscarino, 2014-Ohio-1858, 2014 Ohio App. LEXIS 1819 (2nd Dist. May 2, 2014), and the Ohio
Supreme Court declined further review. State v. Boscarino, 140 Ohio St. 3d 1451 (2014). The
instant habeas case was then timely filed on February 20, 2015, and became ripe for decision on
the filing of Boscarino’s Reply on May 8, 2015.

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Analysis

Ground One: Prejudicial Admission of Boscarino’s MMA Status

In his First Ground for Relief, Boscarino asserts he was denied a fair trial when the trial
judge allowed the jury to learn in several different ways that he was a mixed martial arts fighter
(Brief in Support of Petition, Doc. No. 2, PageID 24-29.)

Recognizing that errors in the

admission of evidence do not usually rise to the level of constitutional violations, Boscarino cites
several cases where the evidence has been found prejudicial enough to deny a fair trial. Id. at
PageID 24-26.

Procedural Default

The Warden asserts Boscarino has procedurally defaulted on this claim by not raising it
on appeal to the Second District (Return of Writ, Doc. No. 8, PageID 1446-48)
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
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rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
391 (1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413
(6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97
(6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court
on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999)(citations omitted). “Even if the state court failed to reject a claim on a procedural
ground, the petitioner is also in procedural default ‘by failing to raise a claim in state court, and
pursue that claim through the state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d

5

423, 437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(quoting
O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999)); see also Deitz v. Money, 391 F.3d 804, 808
(6th Cir. 2004) ("A federal court is also barred from hearing issues that could have been raised in
the state courts, but were not[.]").
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In his Reply Boscarino recognizes the applicability of Maupin (Doc. No. 9, PageID

6

1463). He assumes arguendo that the first three prongs of Maupin can be met, but argues that
the State has not addressed them and states he does not admit them (Id.), so the Court will
address them first.
Under Ohio law, objections made to evidence in a motion in limine are waived unless
renewed at trial. State v. Cephus, 161 Ohio App. 3d 385 (Ohio App. 2nd Dist. 2005). It is
undisputed that trial counsel did not renew the objection at any of the times Boscarino’s MMA
status was mentioned during trial.
But even if Ohio did not have the in limine renewal rule or trial counsel had not made the
in limine motion, Ohio’s contemporaneous objection rule would have prevented raising the claim
on appeal. That rule — that parties must preserve errors for appeal by calling them to the
attention of the trial court at a time when the error could have been avoided or corrected, set
forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v.
Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground of
decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455
F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007);
Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir.
2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854
(6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker,
224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith
v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 131 S. Ct. 185 (2010).
The asserted default here is failure to raise this claim at all in the Second District. It was
raised on further appeal to the Ohio Supreme Court which did not expressly rule that it had not

7

been raised below. However, in Simpson v. Sparkman, 94 F.3d 199 (6th Cir. 1996), the court
held that where a habeas petitioner raises his constitutional claim for the first time before a
State’s highest court which then does not decide the claim, the federal courts are not to assume
that state courts do not observe their own procedural bars, but instead must assume that state
courts enforce those bars. 94 F.3d at 203, citing Tower v. Phillips, 7 F.3d 206, 211 (11th Cir.
1993). The Ohio Supreme Court will not consider an assignment of error that was not raised in
the court below . ¶ 2 of the syllabus in State v. Williams, 51 Ohio St. 2d 112 (1977)(Toledo v.
Reasonover, 5 Ohio St. 2d 22 (1965), approved and followed).

This explicitly includes

constitutional questions. State v. Phillips, 27 Ohio St. 2d 294 (1971).
A habeas petitioner “can overcome a procedural default by showing (a) cause for the
default and (b) actual prejudice from it.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009);
Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004), quoting Murray v. Carrier, 477 U.S. 478
(1986). Boscarino correctly asserts that attorney error amounting to ineffective assistance of
counsel can constitute cause to excuse a procedural default. Murray v. Carrier, 477 U.S. 478,
488 (1985); Howard v. Bouchard, 405 F.3d 459, 478 (6th Cir. 2005); Lucas v. O’Dea, 179 F.3d
412, 418 (6th Cir. 1999); Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996).

The ineffective

assistance claim cannot be presented as cause if it was procedurally defaulted in the state courts,
unless one of the standard excuses for that procedural default exists, to wit, actual innocence or
cause and prejudice. Edwards v. Carpenter, 529 U.S. 446 (2000). But that did not happen here
– Boscarino did present a claim to the Second District that his trial attorney provided ineffective
assistance of trial counsel by not renewing the objection. The Second District decided that claim
(the third assignment of error) as follows:
[*P19] In his third assignment of error, Boscarino alleges
ineffective assistance of counsel based on his attorney's failure to

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object to evidence about him being a mixed-martial-arts fighter.
Although defense counsel raised the issue in a failed pretrial
motion in limine, counsel did not renew the objection at trial when
the State presented evidence that Boscarino was a licensed mixedmartial-arts fighter. (See, e.g., Tr. Vol. IV at 718-719).
[*P20] To prevail on his ineffective-assistance claim, Boscarino
must show that his attorney's performance was deficient and that
the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Prejudice exists where "there is a reasonable probability
that, but for counsel's deficient performance, the outcome would
have been different." Id. at 694. On the record before us, we see no
ineffective assistance of counsel.
[*P21] In denying Boscarino's motion in limine, the trial court
found that evidence about his status as a licensed mixed-martialarts fighter was highly relevant and that its probative value was not
outweighed by the danger of unfair prejudice. (Doc. #93). A trial
court enjoys considerable discretion when balancing the probative
value of evidence against the danger of unfair prejudice, and we
will not disturb its determination absent an abuse of discretion.
State v. Thompson, 2d Dist. Montgomery No. 22984, 2010-Ohio1680, ¶ 151. We see no abuse of discretion in the trial court's
pretrial ruling.
[*P22] Boscarino's status as a licensed mixed-martial-arts fighter
was relevant to his awareness that his punches could inflict serious
physical harm. That issue was material because Boscarino was
charged with felonious assault, which required proof that he
knowingly caused serious physical harm to Smith. Cf. People v.
Castro, Guam S.Ct. No. CRA12-027, 2013-Guam-20, 2013 WL
5891578, ¶ 32 (Oct. 25, 2013) ("Evidence of Castro's mixed
martial arts participation and expertise was relevant to prove the
awareness component of recklessness because it encompasses his
particular knowledge and experience. * * * One can infer that
Castro was aware that his punch to Dunham's face could cause a
substantial risk of bodily injury or serious bodily injury[.]"); State
v. Thompson, Wash. App. No. 64631-1-I, 2010 Wash. App. LEXIS
2099, 2010 WL 3620240, *5 (Sept. 20, 2010) ("Thompson
next contends that the trial court erred by finding evidence of his
prior cage fighting experience more probative than prejudicial.
Thompson is incorrect. * * * [T]he evidence tends to establish that
his use of force was reckless, as he was likely aware of the amount
of force necessary to subdue a person."); People v. Scott, 47
A.D.3d 1016, 1020-21, 849 N.Y.S.2d 335, 339-40 (2008) ("We
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also are unpersuaded by defendant's claim that County Court
committed reversible error in admitting his certified professional
boxing records into evidence and allowing the People to question
him about being a boxer. County Court found these records, which
included 19 wins by knockout, relevant to whether defendant
possessed the ability to kill a person with his fists, his awareness of
such lethal capacity and the intent inferable from repeatedly
punching the 59-year-old victim."). The trial court also reasonably
concluded that the probative value of Boscarino's status as a
mixed-martial-arts fighter was not outweighed by the danger of
unfair prejudice.
[*P23] Having found no abuse of discretion in the trial court's
ruling on the motion in limine, we cannot find ineffective
assistance in defense counsel's failure to raise the issue through an
objection at trial. It is axiomatic that failure to object to admissible
evidence does not constitute deficient performance. State v. Kelley,
2d Dist. Montgomery No. 13426, 1993 Ohio App. LEXIS 6332,
1993 WL 544936, *8 (Dec. 22, 1993) (recognizing that "failure to
object to admissible evidence does not violate any of defense
counsel's essential duties to his or her client"). Because the mixedmartial-arts evidence was admissible, defense counsel had no
obligation to object at trial. Boscarino's third assignment of error is
overruled.
State v. Boscarino, supra.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
Here the Second District Court of Appeals applied the relevant Supreme Court precedent
– Strickland v. Washington. This Court agrees with its conclusion that “[i]t is axiomatic that
failure to object to admissible evidence does not constitute deficient performance.” Of course
Boscarino asserts it should not have been found admissible and argues the three non-Ohio cases
10

relied on by the Second District for admission of similar evidence were stronger cases. (Reply,
Doc. No. 9, PageID 1464.) But outside the very narrow range of constitutionally prejudicial
evidence, the questions of relevance and prejudice are for the trial judge under an abuse of
discretion standard.
If there was no deficient performance in failure to object, then there was no ineffective
assistance of trial counsel to excuse failing to raise the First Ground for Relief on direct appeal.
The claim is procedurally defaulted and should be dismissed on that basis.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Petitioner raises directly the same claim of ineffective
assistance of trial counsel he pled to show excusing cause as to the First Ground for Relief.
Because the Second District’s decision on that question is neither contrary to nor an objectively
unreasonable application of Strickland, it is entitled to AEDPA deference. The Second Ground
for Relief should therefore be dismissed with prejudice.

Ground Three: Insufficient Evidence

In his Third Ground for Relief, Boscarino asserts his conviction is not supported by
sufficient evidence.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,

11

200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
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disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
The Second District recited the facts relevant to its decision of this assignment of error as
follows:
[*P3] The present appeal stems from a fight that occurred outside
Taggart's Pub on Patterson Avenue. The State's evidence
established that Dayton police officer Donnie Smith arrived at the
pub in the early morning hours of August 12, 2011 in response to a
call about attempted theft of patio furniture. Smith was standing
outside the pub speaking with owner Michael Taggart, bouncer
Brian Rinderle, and others when a white Cadillac pulled up
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heading the wrong way on Broadmoor Avenue. The car stopped
briefly and three men got out. The men later were identified as
Boscarino and two of his friends, Anthony Ballard and Mo Rashad.
Upon seeing the three men, Taggart advised Rinderle that he did
not want them in the pub because it was near closing time, they
were being loud, and they appeared intoxicated. Smith heard
Taggart and indicated that he would go speak to the men.
[*P4] As Boscarino's friends neared the pub, Boscarino stepped
behind some hedges and began urinating on or near the sidewalk.
Smith approached wearing his uniform and identified himself as a
police officer. He then told Boscarino that he was going to issue a
citation for urinating in public. When Smith attempted to escort
Boscarino to his police cruiser, Boscarino adopted a fighting
stance. Smith stepped back, pulled out his taser, and warned
Boscarino to cooperate. Boscarino responded by putting his hands
down and appearing to relax. As Smith was putting his taser away,
however, Boscarino punched him twice in the face. The blows
knocked Smith to the ground. Eyewitness Nicholas Folan then saw
Boscarino lean over and deliver a "vicious" blow to Smith's head
as he lay on the concrete. Smith appeared to have been knocked
unconscious.
[*P5] Rinderle saw what happened and ran to help Smith.
Rinderle grabbed Boscarino in a bear hug, and they fell to the
ground. As Rinderle and Boscarino struggled, Smith re-entered the
fray. He fired his taser at Boscarino, but it had no noticeable effect.
Pub patrons Folan and Brian Wessling, an off-duty police officer,
attempted to help control Boscarino, who would not obey
commands. As the altercation continued, Smith made an officer-indistress call on his radio. Soon thereafter, additional officers
arrived and subdued Boscarino. At that time, Smith was laying
down. He appeared dazed and semi-conscious. Upon arresting
Boscarino, police discovered that he was a licensed mixed-martialarts fighter.
[*P6] Smith was transported by ambulance to the hospital. He
was released after being treated for cuts, scrapes, and a hematoma
on the back of his head. Smith followed up with his family doctor,
Martin Fujimura, later that day. He complained of a headache. He
also described seeing "floaters" in his vision. Fujimura noticed an
abrasion and a knot on the back of Smith's head. He diagnosed a
concussion as a result of the fight. He recommended a visit to an
eye doctor for the floaters. Fujimura opined at trial that Smith's
symptoms resulted from the assault by Boscarino. He did not
attribute the symptoms to a brain tumor for which Smith
14

previously had received treatment. Fujimura referred Smith to
Raymond Poelstra, a neurosurgeon, to verify his opinion. Fujimura
also saw Smith for several follow-up visits. On these occasions,
Smith reported having some cognitive problems and stuttering at
times.
[*P7] Poelstra examined Smith in October 2011, approximately
two months after the incident with Boscarino. At that time, Smith
complained of continued headaches. Although Smith had a history
of chronic headaches, he reported that they had worsened since
Boscarino's assault. Smith also reported experiencing difficulty
concentrating, slurred speech, stuttering when excited, and shortterm memory loss. Poelstra noted that Smith had a history of
several prior concussions and treatment for a meningioma, a nonmalignant brain tumor. Poelstra ruled out the tumor, or Smith's
treatment for it, as a source of his symptoms. Poelstra diagnosed
him as suffering from post-concussive syndrome and attributed his
symptoms to the concussion he sustained when Boscarino
assaulted him. In reaching this conclusion, Poelstra noted that each
successive concussion has an "additive" effect on the harm caused
by prior concussions. Therefore, a patient's symptoms may
increase in severity with each successive concussion. Poelstra
found that to be true in Smith's case.
[*P8] Smith also was examined by chiropractor Charles Lee
approximately one month after the incident with Boscarino. During
his examination, Lee noticed that Smith repeated himself several
times, which suggested short-term memory loss. Smith complained
of neck and back pain as well as headaches. Lee diagnosed lumbar,
cervical, and thoracic sprains and strains. He concluded that these
injuries were caused by the altercation with Boscarino. He
characterized the injuries as temporary but substantial.
[*P9] In his defense, Boscarino called neurologist Alan Jacobs to
testify. Jacobs did not examine Smith. He based his testimony on a
review of medical records. Jacobs noted the absence of any
reported swelling or broken bones in Smith's face after the
altercation. He also noted, however, that some swelling
had occurred on the back of Smith's head. Jacobs opined that
Smith had suffered a mild concussion as a result of trauma to the
back of his head. He classified the concussion as being "level one,"
the lowest level. He reached this conclusion based on what he
perceived as a lack of evidence regarding memory loss. He
believed Smith was unlikely to have experienced any serious or
lasting cognitive impairment as a result of the concussion, which
he doubted had resulted in a loss of consciousness. Jacobs also did
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not attribute Smith's worsening headaches to the altercation with
Boscarino. Jacobs attributed them to Smith's prior concussions, his
brain tumor and the accompanying treatment, and his history of
chronic migraines.
State v. Boscarino, supra. Having recited the relevant Ohio case law which adopts the Jackson
v. Virginia, 443 U.S. 307 (1979) standard, the Second District rejected this claim as follows:
[*P14] With the foregoing standards in mind, we conclude that

Boscarino's felonious-assault conviction is supported by legally
sufficient evidence. To obtain a conviction under R.C.
2903.11(A)(1), the State was required to prove that Boscarino
knowingly caused serious physical harm to Smith, who was
performing his official duties as a peace officer. The
State's evidence, if believed, is sufficient to prove these elements.
Pursuant to R.C. 2901.22(B), "[a] person acts knowingly,
regardless of his purpose, when he is aware that his conduct will
probably cause a certain result[.]" Consistent with R.C.
2901.01(A)(5), the trial court gave the following jury instruction
regarding the meaning of "serious physical harm":
Serious physical harm to persons means any of the
following: a) any physical harm that involves some
permanent incapacity, whether partial or total or that
involves some temporary substantial incapacity.
Temporary unconsciousness constitutes a temporary
substantial incapacity and therefore serious physical
harm[;] b) any physical harm that involves acute pain of
such duration as to result in substantial suffering or that
involves any degree of prolonged or intractable pain; and
c) any physical harm that carries a substantial risk of
death.
(Tr. Vol. VI at 983).1
1 The trial court's instruction that temporary
unconsciousness constitutes serious physical harm is
not specified in R.C. 2901.01(A)(5). But the
instruction is consistent with this court's case law. See,
e.g., State v. Booker, 2d Dist. Montgomery No. 22990,
2009-Ohio-1039, ¶ 16 ("Temporary unconsciousness
constitutes a temporary substantial incapacity, and
therefore serious physical harm.").
[*P15]

This court has recognized that identifying serious
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physical harm is not an "exact science" because the definition
includes terms such as "substantial," "temporary," "acute," and
"prolonged." State v. Fields, 2d Dist. Montgomery No. 25461,
2013-Ohio-3031, ¶ 18. Under certain circumstances, a bruise may
constitute serious physical harm. Moreover, a jury reasonably may
infer serious physical harm where a victim's injuries are serious
enough to cause him to seek medical treatment. Id.
[*P16] The evidence here supports a finding that Boscarino

knowingly caused serious physical harm to Smith. Although Smith
was unsure whether Boscarino knocked him out, the record
contains testimony from which the jury reasonably could have
inferred that Smith was rendered unconscious as a result of
Boscarino punching him. Rinderle testified that Smith "was out"
after Boscarino hit him. (Tr. Vol. III at 368). Folan testified that
Smith "went straight down to the ground * * * [l]ike it knocked
him out that fast." (Id. at 383). Police officer John Howard testified
that he arrived at the scene and saw Smith on his back. Smith's
"eyes were open but he was not moving." (Tr. Vol. IV at 618).
According to Howard, Smith "did not appear to be conscious in the
way in which he could move or defend himself. He was not
coherent. He wasn't moving at all." (Id.). Police officer Curry Mire
testified that Smith's eyes were "rolled back into his head." (Id. at
655). Mire stated that Smith "was not responding to any
questions." (Id.). At one point, Smith appeared to be "going in and
out of consciousness[.]" (Id. at 668). Police officer James Hardin
testified that he shook Smith but got no response. It appeared to
him that Smith was unconscious. (Id. at 697).
[*P17] In addition to a loss of consciousness, the record contains
evidence that Smith suffered a concussion and began experiencing
physical problems as a result of being assaulted by Boscarino. As
set forth above, his symptoms include worsened headaches, vision
problems, difficulty concentrating, slurred speech, stuttering, and
short-term memory loss. Smith presented expert testimony from
which the jury reasonably could have attributed these symptoms to
the blows inflicted by Boscarino and could have found serious
physical harm based on them. Viewing the evidence in a light most
favorable to the prosecution, the State presented legally sufficient
evidence to support the jury's guilty verdict on the feloniousassault charge.
State v. Boscarino, supra.
Boscarino’s argument as to why the evidence was insufficient emphasizes additional

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pieces of evidence which could have been introduced – how Boscarino was trained and how
Smith’s injuries actually happened. While this would make excellent jury argument, this habeas
court is not authorized to substitute its own evaluation of the evidence for what the jury found.
The question is not how persuasive the State’s case is to this Court, but whether there was
enough on each element of the offense. The Second District’s conclusion on that question is
neither contrary to nor and objectively unreasonable application of Jackson v. Virginia, 443 U.S.
307 (1979). Therefore Boscarino’s Third Ground for Relief should be dismissed.

Conclusion:

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.
June 1, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
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days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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