State v. Riley ( 2013 )

[Cite as State v. Riley, 2013-Ohio-1332.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
: Case No. CT2012-0022
BLAKE A. RILEY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2011-0122
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 22, 2013
APPEARANCES:
For Appellant: For Appellee:
ELIZABETH N. GABA D. MICHAEL HADDOX
1231 East Broad Street MUSKINGUM CO. PROSECUTOR
Columbus, OH 43205 RON WELCH
27 N. 5th Street, Suite 201
Zanesville, OH 43702-0189
[Cite as State v. Riley, 2013-Ohio-1332.]
Delaney, P.J.
{¶1} Appellant Blake A. Riley appeals from the March 16, 2012 judgment
entry of conviction and sentence of the Muskingum County Court of Common Pleas.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant is the former boyfriend of Ashley Orndorff, the granddaughter
of Larry and Becky Orndorff. Appellant was aware the Orndorffs generously
supported Ashley. They had cash on hand in their home which was available to
Ashley anytime. Appellant knew where the Orndorffs kept their cash and knew the
home was usually unlocked. He also knew the Orndorffs had many firearms in their
home.
{¶3} This case arose in the late-night hours of December 12, 2008 when
intruders broke into the home of Larry and Becky Orndorff while the Orndorffs were
sleeping and stole cash and property.
{¶4} The intruders decided to return in the early morning hours of December
13, 2008, and this time awakened Larry Orndorff. Both Orndorffs were held at
gunpoint and their home was ransacked; they were forced to turn over cash, firearms,
medication, and other property. The Orndorffs believed there were two intruders in
their home during the robbery, and Becky Orndorff heard one place a phone call
instructing someone to come pick them up and to “pop the trunk.” Although most of
the telephones in the house had been disabled, Becky Orndorff was able to call 911 at
1:59 a.m.
Muskingum County, Case No. CT2012-0022 3
{¶5} The Orndorffs did not get a good look at the intruders. Becky was aware
that the one who led her to the garage at gunpoint had blue eyes and was taller than
her husband, and of slender build, but he was wearing a ski mask or other type of
head covering, black clothing, and gloves. Investigators were not able to find any
useful fingerprints and did find marks in dust that confirmed the intruders wore gloves
during the robbery.
{¶6} The Muskingum County Sheriff’s Office immediately focused on the
phone call that had been placed during the robbery. They narrowed down the cell
phone towers that picked up calls from the Orndorffs’ residence. Next they narrowed
down calls within twenty minutes of Becky Orndorff’s 911 call, which were likely to be
the intruders calling their getaway driver. Eventually this investigative work led to a list
of six telephone numbers. Those telephone numbers led to interviews with several
individuals including appellant, Ryan Barlow, and Jamie Hutton, among others. All
denied their involvement in the home invasion.
{¶7} The investigation yielded few leads until a woman named Keela Davis
came forward in 2010 and told her mother that appellant, Ryan Barlow, and Jamie
Hutton were the three who had perpetrated the Orndorff home invasion. A fourth
individual, Brittany Funk, was the getaway driver. Law enforcement interviewed
Barlow, Hutton, and Funk and developed additional leads to confirm their suspicion of
appellant’s involvement.
{¶8} Appellant was initially charged as a juvenile and bound over to the
Muskingum County Court of Common Pleas. After indictment and before the start of
trial, the State dismissed two aggravated robbery charges and amended others with
Muskingum County, Case No. CT2012-0022 4
the result that appellant stood trial upon one count of aggravated burglary [R.C.
2911.11(A)(2)], theft of a firearm [R.C. 2913.02(A)(1)], theft in an amount greater than
$1000 and less than $7500 [R.C. 2913.02(A)(1)], aggravated burglary [R.C.
2911.11(A)(2)] with a firearm specification [R.C. 2941.145], two counts of kidnapping
[R.C. 2905.01(A)(2)] with a firearm specification [R.C. 2941.145], one count of theft of
firearms [R.C. 2913.02(A)(1)], and one count of theft in an amount greater than $7500
and less than $150,000 [R.C. 2913.02(A)(1)].
{¶9} The State’s evidence at trial included the testimony of the Orndorffs and
the investigators. Ryan Barlow and Jamie Hutton, appellant’s accomplices, also
testified, as did Brittany Funk. A former girlfriend of appellant’s testified he admitted
his involvement in the home invasion to her when she asked him about it, and said
Jamie Hutton forced him into it.
{¶10} Appellant presented a number of alibi witnesses who claimed the night of
the robbery he was present at a performance by his sibling “Claudia” in Columbus,
Ohio. The State presented some evidence to indicate this show was performed a
different weekend than the one in question.
{¶11} Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at
the close of appellee’s evidence and at the close of all of the evidence; the motions
were overruled. Appellant was found guilty as charged. The trial court determined
that a number of the counts and firearm specifications merged,1 and sentenced
appellant to an aggregate prison term of 23 years.
1
Counts two and three (two counts of theft) merged with count one (aggravated burglary);
Counts seven and eight (theft) merged with count four (aggravated burglary); the firearm
specifications merge and appellant was sentenced on only one.
Muskingum County, Case No. CT2012-0022 5
{¶12} Appellant now appeals from the judgment entry of his conviction and
sentence.
{¶13} Appellant raises seven Assignments of Error:
{¶14} “I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS
INSTRUCTION TO THE JURY IN 1) FAILING TO GIVE THE JURY THE REQUIRED
CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF AN ALLEGED
ACCOMPLICE UNDER R.C. 2923.03(D) AS TO THE TESTIMONY OF RYAN
BARLOW AND JAMIE HUTTON; AND 2) FAILING TO IDENTIFY BRITTANY FUNK
AS A THIRD POTENTIAL ACCOMPLICE IN A CAUTIONARY INSTRUCTION.”
{¶15} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES ON
COUNTS 4, 5, AND 6 OF THE INDICTMENT IN VIOLATION OF R.C. 2941.25—
ALLIED OFFENSES OF SIMILAR IMPORT—AND THE DOUBLE JEOPARDY
CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS.”
{¶16} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE
PREJUDICE OF APPELLANT, BY CONVICTING APPELLANT, BECAUSE THIS
CONVICTION WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION.”
{¶17} “IV. THE COURT OF COMMON PLEAS DID NOT HAVE SUBJECT
MATTER JURISDICTION OVER THE CRIMINAL TRIAL BECAUSE BLAKE RILEY
WAS UNDER EIGHTEEN YEARS OLD AT THE TIME OF THE ALLEGED OFFENSE
AND WAS NOT PROPERLY BOUND OVER FROM THE JUVENILE COURT.”
Muskingum County, Case No. CT2012-0022 6
{¶18} “V. DEFENDANT’S JUVENILE COURT BINDOVER TO ADULT COURT
VIOLATED THE PRINCIPLES SET FORTH IN APPRENDI V. NEW JERSEY 530 U.S.
466 (2000), AND THUS VIOLATED HIS RIGHTS TO DUE PROCESS AND TO A
JURY TRIAL.”
{¶19} “VI. THE COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT FAILED TO RECORD ALL THE PROCEEDINGS IN THIS CASE.”
{¶20} “VII. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE
OF COUNSEL DUE TO NUMEROUS ERRORS AND OMISSIONS WHICH
PREJUDICED APPELLANT’S TRIAL.”
I.
{¶21} Appellant argues in his first assignment of error the trial court erred in its
jury instructions with respect to accomplice testimony. We disagree.
{¶22} Ohio Revised Code Section 2923.03(D) provides:
If an alleged accomplice of the defendant testifies against the
defendant in a case in which the defendant is charged with
complicity in the commission of or an attempt to commit an
offense, an attempt to commit an offense, or an offense, the court,
when it charges the jury, shall state substantially the following:
“The testimony of an accomplice does not become inadmissible
because of his complicity, moral turpitude, or self-interest, but the
admitted or claimed complicity of a witness may affect his
credibility and make his testimony subject to grave suspicion, and
require that it be weighed with great caution.
Muskingum County, Case No. CT2012-0022 7
“It is for you, as jurors, in the light of all the facts presented to you
from the witness stand, to evaluate such testimony and to
determine its quality and worth or its lack of quality and worth.”
{¶23} In this case, no instruction on accomplice testimony was given.
Appellant’s trial counsel did not request an instruction nor object to the instructions as
given, and appellant concedes he has therefore waived all but plain error. Pursuant to
Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” The rule places several
limitations on a reviewing court’s determination to correct an error despite the absence
of timely objection at trial: (1) “there must be an error, i.e., a deviation from a legal
rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious’ defect
in the trial proceedings,” and (3) the error must have affected “substantial rights” such
that “the trial court’s error must have affected the outcome of the trial.” State v. Dunn,
5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, citing State v. Morales, 10 Dist. Nos.
03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted). The decision to
correct a plain error is discretionary and should be made “with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.
{¶24} In determining whether the trial court committed plain error by failing to
give the jury an accomplice instruction under R.C. 2923.03, an appellate court
generally examines several specific factors. See, State v. Simpson, 9th Dist. No.
25363, 2011–Ohio–2771, ¶ 19. In State v. Davis, the Ninth District Court of Appeals
Muskingum County, Case No. CT2012-0022 8
articulated a number of factors to review when the trial court fails to give an instruction
on accomplice testimony in the absence of a request to do so.
When determining whether the trial court committed plain
error by failing to comply with R.C. 2923.03(D), this Court
examines several factors. We look to the record to
determine the scope of cross-examination of the
accomplice that was permitted by the trial court.* * *
Further, we review whether the details of the accomplice's
plea agreement were presented to the jury and whether the
jury instructions that were actually given contain much of
the substance of the instructions mandated by R.C.
2923.03(D). Finally, we examine whether the accomplice's
testimony was favorable to the defendant, justifying
defense counsel's failure to request the required instruction
as a tactical decision. * * *. [Internal citations omitted].
State v. Davis, Ninth Dist. No. 22395, 2005-Ohio-4083, ¶
16.
{¶25} We find no plain error with regard to the testimony of Barlow and Hutton.
The scope of cross examination of both was extensive and without constraint by the
trial court. The jury was told the lengths of their sentences due to their involvement in
this crime. The jury instructions, as in Davis, contained only the standard language
about witness credibility. Barlow and Hutton’s testimony was also unfavorable to
appellant: both put him squarely in the midst of both aggravated robberies, suggesting
Muskingum County, Case No. CT2012-0022 9
the locale, in the residence, holding a shotgun to the Orndorffs and carrying out
firearms and other property. However, we find this case distinguishable from Davis,
supra, and more akin to State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087,
817N.E.2d 845, ¶ 83, because the evidence of appellant’s involvement in the home
invasion did not rest solely upon the accomplices’ testimony. Other evidence of
appellant’s involvement existed and therefore the trial court’s failure to give the
accomplice jury instruction was not plain error.
{¶26} With regard to the testimony of Brittany Funk, we find no plain error.
Appellant has not explained how Brittany Funk was an accomplice. She was not
charged as a result of her involvement. Generally, “[a]t minimum, an accomplice must
be someone who has been indicted for the crime of complicity.” State v. Smith, 9th
Dist. No. 25650, 2012–Ohio–794, ¶ 22. Otherwise, an accomplice instruction may
become necessary only in certain “rare circumstances” where a person might have
been an accomplice, but was never indicted, such as a situation in which he or she
received immunity in exchange for his or her testimony. Id. Funk was never charged
as an accomplice and received no special treatment for her cooperation and
testimony. Funk testified she was unaware of any plans to rob the Orndorff home; and
denied any involvement in the crime. Appellant has not shown Funk was actually an
accomplice or that her status was such that this was one of the “rare circumstances”
where an accomplice instruction was warranted. See Id.{¶27} Funk was not indicted for complicity, nor was any evidence presented to
show that she received any type of favorable treatment in exchange for testifying
against appellant. Therefore, the trial court was not required to give the cautionary
Muskingum County, Case No. CT2012-0022 10
instruction to the jury. State v. Howard, 5th Dist. No. 06CAA100075, 2007-Ohio-3669,
¶ 60.
{¶28} The trial court did not commit plain error in failing to give an accomplice
instruction and appellant’s first assignment of error is overruled.
II.
{¶29} In his second assignment of error, appellant argues his convictions for
kidnapping and the second count of aggravated burglary should have merged for
purposes of sentencing because they are allied offenses of similar import. We
disagree.
{¶30} With respect to victims Larry and Becky Orndorff, appellant was indicted
upon, convicted of, and sentenced upon one count each of kidnapping pursuant to
R.C. 2905.01(A)(2). Appellant argues the trial court should have merged the second
count of aggravated burglary pursuant to R.C. 2911.11(A)(2) (Count Four) for
purposes of sentencing.
{¶31} R.C. 2941.25 states as follows:
(A) Where the same conduct by defendant can be
construed to constitute two or more allied offenses of
similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
Muskingum County, Case No. CT2012-0022 11
separately or with a separate animus as to each, the
indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of
them.
{¶32} In State v. Johnson, the Ohio Supreme Court modified the test for
determining whether offenses are allied offenses of similar import. 128 Ohio St.3d
1405, 2010–Ohio–6314. The Court directed us to look at the elements of the offenses
in question and determine whether or not it is possible to commit one offense and
commit the other with the same conduct. If the answer to such question is in the
affirmative, the court must then determine whether or not the offenses were committed
by the same conduct. If the answer to the above two questions is yes, then the
offenses are allied offenses of similar import and will be merged. If, however, the court
determines that commission of one offense will never result in the commission of the
other, or if there is a separate animus for each offense, then the offenses will not
merge according to Johnson, supra.
{¶33} Count Four, aggravated burglary pursuant to R.C. 2911.11(A)(2), states
in pertinent part, “No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied portion of an
occupied structure, when another person other than an accomplice of the offender is
present, with purpose to commit in the structure or in the separately secured or
separately occupied portion of the structure any criminal offense, if * * * [t]he offender
has a deadly weapon or dangerous ordnance on or about the offender's person or
under the offender's control.” Appellant was also convicted of one count of kidnapping
Muskingum County, Case No. CT2012-0022 12
pursuant to R.C. 2905.01(A)(2), which states, “No person, by force, threat, or
deception * * * shall remove another from the place where the other person is found or
restrain the liberty of the other person, for any of the following purposes: [t]o facilitate
the commission of any felony or flight thereafter.”
{¶34} Under the facts of this case, the aggravated burglary was complete when
appellant entered the house for the second time. Upon awakening the Orndorffs and
subjecting them to prolonged restraint, and forcing Becky Orndorff into the garage at
gunpoint, the offense of kidnapping was committed with a separate animus. The
aggravated burglary offense is not an allied offense of kidnapping under these
circumstances.
{¶35} Appellant’s second assignment of error is overruled.
III.
{¶36} In his third assignment of error, appellant argues summarily his
convictions are against the manifest weight and sufficiency of the evidence. We
disagree.
{¶37} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
syllabus, in which the Ohio Supreme Court held, “An appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to examine
the evidence admitted at trial to determine whether such evidence, if believed, would
Muskingum County, Case No. CT2012-0022 13
convince the average mind of the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.”
{¶38} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra,
78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of
the evidence and ordering a new trial should be reserved for only the “exceptional
case in which the evidence weighs heavily against the conviction.” Id.
{¶39} Appellant was convicted upon one count of aggravated burglary, one
count of theft of firearms, and one count of theft in an amount greater than $1000 and
less than $7500 related to the first entrance into the home on December 12, 2008. He
was convicted of one count of aggravated burglary, one count of theft of firearms, one
count of theft in an amount greater than $7500 and less than $150,000 and two counts
of kidnapping for the return to the home in the early morning hours of December 13,
2008 and encounter with the Orndorffs.
{¶40} Appellee’s evidence consisted of the testimony of the Orndorffs, who
were not able to specifically identify appellant but did provide a link to him because he
dated their granddaughter, had been in their home, and was aware they had ready
Muskingum County, Case No. CT2012-0022 14
cash and firearms. Hutton, Barlow, and Funk detailed the events the night of the
home invasion and appellant’s involvement therein. DNA consistent with appellant
was found on a metal bar under the deck of the residence, found with a radio removed
from the Orndorffs’ daughter’s car. Appellant’s girlfriend testified about his admissions
to her. The cell phone evidence implicated Barlow and Hutton, which led to appellant.
{¶41} Appellant does not indicate which element of which offense appellee
failed to present sufficient evidence of. Nor does he point to any evidence in the
record that the jury lost its way. Appellant’s convictions are not against the manifest
weight or sufficiency of the evidence and appellant’s third assignment of error is
overruled.
IV.
{¶42} In his fourth assignment of error, appellant argues the common pleas
court lacked jurisdiction to indict, convict, and sentence him. We disagree.
{¶43} It is undisputed appellant was age 17 at the time of the offense.
Pursuant to R.C. 2152.10(A)(2)(b), appellant was subject to mandatory transfer. “A
child who is alleged to be a delinquent child is eligible for mandatory transfer and shall
be transferred as provided in section 2152.12 of the Revised Code in any of the
following circumstances: The child is charged with a category two offense, other than
a violation of section 2905.01 of the Revised Code, the child was sixteen years of age
or older at the time of the commission of the act charged, and either or both of the
following apply: The child is alleged to have had a firearm on or about the child's
person or under the child's control while committing the act charged and to have
displayed the firearm, brandished the firearm, indicated possession of the firearm, or
Muskingum County, Case No. CT2012-0022 15
used the firearm to facilitate the commission of the act charged.” Appellant was
charged with a number of Category Two offenses pursuant to R.C. 2152.02(CC)(1),
including aggravated burglary and kidnapping.
{¶44} Appellant argues, though, the juvenile court failed to consider
amenability factors and failed to order a mental health evaluation. We find no
authority for such requirement for mandatory transfers, nor does appellant offer any.
{¶45} Appellant also argues the juvenile complaint was improper because it
does not state where the offense took place. It is well established, though, that failure
to object or otherwise raise venue issues in a juvenile complaint waives the matter on
appeal. See, e.g., State v. Loucks, 28 Ohio App.2d 77, 82, 274 N.E.2d 773 (4th
Dist.1971).
{¶46} Appellant’s fourth assignment of error is overruled.
V.
{¶47} In his fifth assignment of error, appellant argues Ohio’s juvenile transfer
statute violates the Sixth Amendment right to trial by jury as set forth in Apprendi v.
New Jersey, 530 U.S. 466 (2000). We disagree.
{¶48} In Apprendi v. New Jersey, the United State Supreme Court determined
that other than the fact of a prior conviction, any fact which increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury and
proven beyond a reasonable doubt. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000). Appellant apparently argues Ohio’s juvenile bindover procedure violates
Apprendi because juvenile bindover proceedings should be held to a reasonable-
doubt standard.
Muskingum County, Case No. CT2012-0022 16
{¶49} We reject appellant’s argument as a misunderstanding of Ohio criminal
procedure. The juvenile bindover procedure is analogous to the adult preliminary
hearing: both evaluate probable cause, neither is a determination of a defendant’s
guilty beyond a reasonable doubt. Appellee points out that Juv.R. 27(A) and R.C.
2151.35(A) require the juvenile division to determine cases without a jury, but this was
a case of mandatory transfer to the (adult) Court of Common Pleas and the matter
was, in fact, tried to a jury.
{¶50} Appellant’s fifth assignment of error is overruled.
VI.
{¶51} In his sixth assignment of error, appellant argues his conviction must be
reversed because bench conferences and other colloquy between counsel and the
court was not recorded. We disagree.
{¶52} Appellant failed to object or ask that sidebar discussions be recorded
and therefore waived the issue. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-
5084, 854 N.E.2d 1038, ¶ 134. We will not reverse where an appellant failed to object
and fails to demonstrate material prejudice. Id. Nothing in the record supports
appellant’s speculation the sidebar discussions dealt with matters relevant to appellate
review. See, id.{¶53} Appellant’s sixth assignment of error is overruled.
VII.
{¶54} In his seventh assignment of error, appellant asserts he received
ineffective assistance of trial counsel. We disagree.
Muskingum County, Case No. CT2012-0022 17
{¶55} To succeed on a claim of ineffectiveness, a defendant must satisfy a
two-prong test. Initially, a defendant must show that trial counsel acted incompetently.
See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing
such claims, “a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350
U.S. 91, 101, 76 S.Ct. 158 (1955).
{¶56} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted
“outside the wide range of professionally competent assistance.” Id. at 690.
{¶57} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
{¶58} Appellant summarily asserts trial counsel made the following strategic
errors: he failed to object to use of photographs of a shoe and to investigate shoe
sizes of witnesses; he didn’t effectively cross-examine the accomplices on their plea
agreements or seek appropriate accomplice jury instructions, and finally he stipulated
to the testimony of a forensic witness.
Muskingum County, Case No. CT2012-0022 18
{¶59} Each of the decisions cited by appellant, with the exception of trial
counsel’s failure to seek accomplice jury instructions, constitutes a matter of trial
strategy, for which we generally afford counsel a broad range of deference. Tactical
or strategic trial decisions, even if ultimately unsuccessful, do not generally constitute
ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965(1995).
{¶60} Counsel’s failure to seek an accomplice instruction was arguably
ineffective under the first prong of Strickland, supra, but appellant has not even
attempted to make an argument under the second prong, and therefore fails to show
the result of the proceeding would have been different had an accomplice instruction
been given. As we have stated infra, appellant’s convictions were not against the
manifest weight of the evidence. We are unable to find appellant suffered actual
prejudice as a result of counsel’s failure to seek an accomplice jury instruction.
{¶61} Appellant’s seventh assignment of error is therefore overruled.
Muskingum County, Case No. CT2012-0022 19
{¶62} Having overruled appellant’s seven assignments of error, the judgment
of the Muskingum County Court of Common Pleas is therefore affirmed.
By: Delaney, P.J.
Hoffman, J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
PAD:kgb
[Cite as State v. Riley, 2013-Ohio-1332.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BLAKE A. RILEY :
:
: Case No. CT2012-0022
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER