State v. Phillips , 2014 Ohio 3670 ( 2014 )


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  • [Cite as State v. Phillips, 
    2014-Ohio-3670
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    WYANDOT COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                                CASE NO. 16-13-09
    v.
    ROGER A. B. PHILLIPS,                                      OPINION
    DEFENDANT-APPELLANT.
    Appeal from Wyandot County Common Pleas Court
    Trial Court No. 12-CR-0050
    Judgment Affirmed
    Date of Decision: August 25, 2014
    APPEARANCES:
    Shane M. Leuthold for Appellant
    Jonathan K. Miller for Appellee
    Case No. 16-13-09
    WILLAMOWSKI, P.J.
    {¶1} Defendant-appellant Roger Adam Blake Phillips (“Phillips”) brings
    this appeal from the judgment of the Common Pleas Court of Wyandot County,
    Ohio, sentencing him to eight years in prison after a jury convicted him of
    aggravated burglary, a felony of the first degree in violation of R.C.
    2911.11(A)(1).    Phillips challenges his conviction based on sufficiency and
    manifest weight of the evidence. He further asserts that his trial counsel was
    ineffective. He also argues that the trial court erred by denying his motions for
    acquittal and for a new trial, as well as by imposing a sentence that was more
    severe than the sentences imposed on his accomplices.        For the reasons that
    follow, we affirm the trial court’s judgment.
    Statement of Facts
    {¶2} On April 4, 2012, in Carey, Ohio, Mrs. Cleo Turnbell (“Mrs.
    Turnbell”), a seventy-nine-year-old widow, who lived alone on Crabapple Drive,
    was awakened in the early morning hours by the sound of something falling in her
    house. When she got up to check on the origin of the noise, she discovered a man
    with a flashlight in her utility room. She started screaming and the intruder
    appeared before her. He was wearing a dark hooded sweatshirt, a face mask, and
    gloves, and he was carrying a gun. The intruder asked Mrs. Turnbell for money
    and immediately after obtaining it, he fled through the door leading to her garage.
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    Mrs. Turnbell then realized that the intruder had broken in through her garage
    door, took the money from her car, and then entered the house through the door
    leading to the house from the garage. She also noticed that, in addition to the
    garage door, her front door had been opened from the inside and left wide open.
    Other rooms in her house bore signs of an intrusion and money was missing from
    her desk. She called 911 and reported the incident.
    {¶3} During an investigation following the incident, the police recovered
    physical evidence, including an empty Red Bull can, a pair of rubber gloves, and a
    shoe impression on a white bank envelope from which the money was taken. The
    scene was photographed. The investigation revealed that more than one intruder
    was in Mrs. Turnbell’s residence on the morning of April 4, 2012. Initially, two
    individuals were charged for their involvement in this crime, Brendan Hoffman
    (“Hoffman”) and Jeremy Ritter (“Ritter”).      The two admitted that they were
    responsible for the offense and they revealed that they had one more accomplice.
    The two men implicated Phillips in the crime and agreed to testify against him in
    exchange for more beneficial sentences for them.
    {¶4} An indictment by the grand jury against Phillips was filed on August
    28, 2012, charging him with aggravated burglary, a felony of the first degree in
    violation of R.C. 2911.11(A)(1). (R. at 1.) Phillips was arrested on the same day
    and arraigned on August 29, 2012. He pled not guilty and received the assistance
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    of an appointed attorney, Todd A. Workman. (R. at 9.) On January 22, 2013,
    attorney Merle R. Dech Jr. entered his appearance as counsel for Phillips,
    substituting for attorney Workman. (R. at 25.) The matter went to trial by jury.
    The testimony relevant to the issues raised by Phillips on appeal can be
    summarized as follows.
    State’s Case in Chief
    Mrs. Turnbell
    {¶5} Mrs. Turnbell testified about her recollection of the night in question.
    She recalled that as she walked into her kitchen to investigate the source of the
    noise in her house, she realized that someone was in there and she started
    screaming, “What do you want? What are you doing in my house?” (Trial Tr. at
    111.) She then described the following,
    And so here comes this person all masked, hooded mask. He walked
    right past my refrigerator and appeared and said, “Put your hands in
    the air.” I said, “I will, I will, I will.” I started screaming, begging,
    “Please don’t hurt me. Please don’t hurt me.” I saw he had a gun in
    his left hand.
    And he said, “I’m not going to hurt you.” He said, “Just tell me”—
    he said, “All I want is your money. Just tell me where you keep it.”
    And I said, “Well, all I have is what’s in my wallet.” Little did I
    know they were already in the two bedrooms and got what they
    wanted. And so I said, “Well, I’ll give you what’s in my wallet.” So
    he backed up, and we went right down—there is one step down into
    my family room. And the picture you saw was my purse hanging on
    the arm of my chair where I usually kept it. I got my wallet out, and
    it was dark. I couldn’t see what I was giving him, because I had
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    night lights on. And he assured me twice that he wasn’t going to
    hurt me; he just wanted my money.
    (Id. at 112.) Mrs. Turnbell then testified that the offender kept the gun in view so
    that she could see it. (Id. at 113.) When asked by the prosecutor whether she felt
    threatened by it, she responded, “Well, yes. That’s why I was begging for my
    life.” (Id.) She stated that “[b]y this time, [she] didn’t see a flashlight. [She] just
    saw the gun.” (Id. at 130.) She described the gun as black but not a revolver type.
    (Id. at 113-115.)
    {¶6} Mrs. Turnbell only saw one intruder, who was of small build and
    approximately her height, which was about 5 feet and 6 inches. (Id. at 115, 131,
    136.) She thought the individual’s weight was about “155 or something,” but she
    admitted that she initially had indicated that the intruder weighed about 180
    pounds. (Id. at 115, 131-132, 135.) Referring to the discrepancy, Mrs. Turnbell
    explained, “I said he was small, small built [sic]. I knew he wasn’t a big person.”
    (Id. at 115.) Mrs. Turnbell testified that the intruder was wearing a dark hooded
    sweatshirt, a mask that covered all of his face except for the eyes, and black
    gloves. (Id. at 115, 132.) The individual’s voice was young, but she did not
    recognize it. (Id. at 114, 130, 133, 135.) She admitted, however, that in her initial
    statement to the police, she had indicated that the intruder’s voice sounded like she
    had heard it before and she had suspected an individual called Dustin Dyer. (Id. at
    135-136.)
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    {¶7} Mrs. Turnbell testified that after she had given the offender the
    money, he left without physically harming her. (Id. at 114.) Although the intruder
    left through the door leading to her garage, she noticed that her front door had
    been unlocked and left standing open. (Id. at 106, 114, 133.) As Mrs. Turnbell
    was waiting for the police, she was looking out of her utility door glass, and in the
    driveway across the street, she saw a man with a hooded sweatshirt on, whose
    clothes resembled the individual she had seen in her house. (Id. at 125-126.) Mrs.
    Turnbell found a footprint on one of the empty bank envelopes left on the floor
    and she reported it to the police. (Id. at 119.)
    {¶8} Mrs. Turnbell testified that she had known Phillips through his
    parents. Phillips and his father had done her yard work in the past, but the most
    recent service by them was about four years before the burglary. (Id. at 136-137.)
    Jeremy Ritter
    {¶9} Ritter testified that he was incarcerated and was serving six years as a
    result of the burglary in Mrs. Turnbell’s house. (Id. at 145-146.) He also admitted
    to having prior felony convictions for trafficking in drugs. (Id. at 162.) Ritter
    testified that he had been a friend of Phillips for a number of years. (Id. at 145.)
    He disclosed that he had agreed to testify against Phillips about his involvement in
    the crime in exchange for a reduced sentence for himself; but he denied trying to
    “frame” Phillips. (Id. at 162, 171.)
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    {¶10} Ritter testified that the burglary was Phillips’ idea and he first heard
    about it when he was drinking with Hoffman in Findlay.            (Id. at 145-147.)
    According to Ritter, Phillips told them that there was a lot of money in Mrs.
    Turnbell’s residence and that he knew exactly where it was. (Id. at 151.) That
    same night, Hoffman and Ritter went to Ritter’s house, which was also on
    Crabapple Drive. (Id. at 147-148.) Phillips joined them and brought a book bag
    with two guns in it. (Id. at 149.) Ritter testified that one of the guns was a black
    BB gun, which looked like a semi-automatic weapon, and the other one, Ritter was
    “pretty sure” was “a .38,” a revolver. (Id. at 149-150.) According to Ritter,
    Hoffman took the BB gun and Phillips took the other gun into the burglary, while
    Ritter did not have any weapons with him. (Id. at 150, 165-166, 171.)
    {¶11} They got ready at Ritter’s house by putting “gloves on and stuff,”
    and putting socks over their shoes in order to cover up the footprints. (Id. at 148,
    150-151.) Ritter had a mask on and a pair of Cleveland Brown winter gloves. (Id.
    at 150.) He stated that one of the other men had latex gloves on but he did not
    remember whether it was Phillips or Hoffman. (Id. at 150.) He later said that
    Hoffman was the one wearing blue latex gloves. (Id. at 171.)
    {¶12} Ritter stayed in the garage during the burglary, while Phillips and
    Hoffman rifled through Mrs. Turnbell’s car and then went inside the house, with
    Hoffman leading the way. (Id. at 153-154, 156, 166-167.) After about five or ten
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    minutes, Ritter heard a scream and he heard someone yell “put your hands up.”
    (Id. at 157.) He also heard someone say, “Get the fuck down.” (Id. at 167.) He
    did not know whose voice he had heard. (Id. at 157.) He ran out of the garage
    door, and ran back to his house through backyards. (Id. at 157, 168.) He saw that
    Hoffman was already 30 to 40 feet in front of him, although Hoffman did not
    come out through the garage door with him. (Id. at 157-158.) He later clarified
    that Hoffman was 30 to 40 yards ahead of him. (Id. at 168.) Ritter was “pretty
    sure” that Hoffman had left the house through the front door. (Id. at 158.) Ritter
    testified that Hoffman “was stopped behind a shed,” hiding and waiting for him to
    catch up. (Id. at 169.) He caught up to Hoffman and the two men ran into Ritter’s
    house. (Id. at 158-159.) Ritter recalled that, as they were running by Snyder Park
    where Crabapple Drive ends, a black truck drove by. (Id. at 171-172.) Hoffman
    and Ritter waited at Ritter’s house for Phillips, who took longer to get back. (Id.
    at 158-159.)
    {¶13} Ritter testified that after the robbery, he disposed of evidence. (Id. at
    154-155, 161, 170.) He was nervous about getting caught and was worried that
    someone would recognize him, given his considerable height and weight. (Id. at
    159.) He later learned that someone had seen him running down his street at about
    5:00 or 5:30 that morning. (Id. at 159.) Ritter testified that he had met with
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    Phillips and Phillips’ father at some point to “talk about what happened,” meaning
    “the crime, itself.” (Id. at 160.)
    {¶14} Ritter admitted that after being arrested, he talked to Hoffman
    through the vents in Wyandot County Jail. (Id. at 172.) He acknowledged that he
    had not come forward to the police about the facts of this crime until about three
    or four months after his incarceration. (Id.)
    Brendan Hoffman
    {¶15} Brendan Hoffman testified that he was in prison for a number of
    charges, including six years for the burglary of Mrs. Turnbell’s residence. (Id. at
    209.) Hoffman admitted that he had entered into an agreement for a sentence
    recommendation so that sentences for all his convictions would run concurrently,
    which was very beneficial to him. (Id. at 230-231.) He came forward with
    evidence about this case to “try to make amends.” (Id. at 209.)
    {¶16} Hoffman’s testimony in many respects confirmed Ritter’s version of
    events. Some of their statements differed, however. Hoffman testified that it was
    all three of them who came up with the idea to burglarize Mrs. Turnbell’s home
    after “a source” told them that there was a large amount of money there. (Id. at
    210-211.) On cross-examination, Hoffman confirmed that he had previously told
    Lieutenant Frey that Phillips was the alleged source because he knew about the
    money being at Mrs. Turnbell’s residence after having mowed her grass. (Id. 215-
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    216.) Similarly to Ritter, Hoffman testified that he was in Findlay with Ritter
    when the idea came up, and then went to Carey to Ritter’s house, where they
    “suited up and headed over to Snyder Park where Cleo Turnbell lives.” (Id. at
    211.)
    {¶17} Hoffman confirmed Ritter’s testimony regarding preparations at his
    garage and claimed that he wore a black zip up, socks over his shoes, a mask, and
    blue rubber gloves. (Id. at 212, 214.) He claimed that Phillips also wore latex
    gloves. (Id. at 222.) Hoffman denied having a gun or anything that could look
    like a gun, but confirmed that Phillips had a black BB gun. (Id. at 212, 219, 222.)
    He testified that the only gun he saw that night was the BB gun. (Id. at 229.)
    Hoffman testified that prior to the robbery, he had drunk from a Red Bull can,
    which he threw away, and which was later found by the police. (Id. at 214, 221-
    222, 229-230.) He claimed that he had shared the drink with Phillips. (Id.)
    {¶18} Hoffman admitted that he and Phillips went into Mrs. Turnbell’s
    house, while Ritter stayed in the garage for a lookout. (Id. at 212.) He admitted
    that he had taken money from the bank envelope that was later found on the floor
    in Mrs. Turnbell’s house, and that it was his footprint that was found on the bank
    envelope. (Id. at 217, 221.) He heard someone in the house say “Freeze bitch,”
    and when he heard Mrs. Turnbell scream, he ran away through the front door,
    leaving it open, without checking what had happened. (Id. at 212-213, 220-221.)
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    He ran around the house and saw Ritter who had left through the back door and
    was already running too. (Id. at 227.) Hoffman passed Ritter and ran ahead of
    him, straight to Ritter’s house. (Id. at 213, 227-228.) He denied hiding in a shed
    on the way. (Id. at 228.) Hoffman remembered seeing a pickup truck on the way
    to Ritter’s house. (Id. at 229.)
    {¶19} Hoffman testified that after the crime, he spoke to Phillips about it,
    “but not much,” and they encouraged each other to keep this all secret.” (Id. at
    231-232.) Phillips told him, however, that he had talked about the crime to his
    father, who was a former police chief. (Id. at 232.)
    {¶20} Hoffman admitted that although the burglary at Mrs. Turnbell’s
    house was his first, he did “a couple more” afterwards. (Id. at 225.) He was
    apprehended by Lieutenant Frey on April 10, 2012. (Id. at 225.) He did not talk
    to Lieutenant Frey about Phillips at that time. (Id. at 226.) During the trial,
    Hoffman did not remember statements that he had made to Lieutenant Frey; he
    claimed that he had been “really high on drugs” at the time. (Id. at 225-226.) He
    did remember reading a statement in his discovery pack indicating that he had
    implicated another individual, Jeremy Walters, in the burglary. (Id. at 226.) He
    admitted that he did not mention Phillips until August 2012, after he “had taken
    care of other matters,” and before proceedings on this case against him started.
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    (Id. at 226-227.) Hoffman tried to keep Phillips’ name “out of this as long as [he]
    could.” (Id. at 232.)
    {¶21} Hoffman admitted that after his arrest, he talked to Ritter through the
    vents of Wyandot County Jail. (Id. at 223.) He also wrote a letter to Phillips from
    jail, in which he requested Phillips to provide him with drugs. (Id. at 224.)
    Phillips did not bring the drugs to him. (Id. at 224-225.)
    Kyle Shaw
    {¶22} Kyle Shaw (“Shaw”), who grew up next to Phillips “for like twenty
    years,” testified that he had sold Phillips a black BB gun, which looked like a
    semi-automatic pistol, sometime in the end of March or early April 2012. (Id. at
    176.) The sale occurred before the burglary at issue. (Id. at 177.) He admitted
    that he had stolen the BB gun from Walmart before selling it to Phillips. (Id. at
    178.) He also admitted that he had been convicted of grand theft motor vehicle
    and of arson in 2006. (Id. at 177.) He contended that he was telling the truth on
    the stand. (Id. at 178.)
    Deputy Christopher Verhoff
    {¶23} Deputy Christopher Verhoff (“Deputy Verhoff”), who was a Carey
    police officer at the time of the burglary, testified about his investigation of the
    incident and about the evidence obtained as a result. (Id. at 179.) He testified that
    after receiving a call about the burglary, he patrolled the general area prior to
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    going to Mrs. Turnbell’s house. (Id. at 197-198.) During that time, he came into
    contact with Richard Siefert (“Siefert”), who had flagged him down and
    volunteered information about what he had seen that morning. (Id. at 198.) Based
    on the information learned from Siefert, Deputy Verhoff developed one suspect,
    Ritter. (Id. at 199.) He asked Siefert to submit a written statement as to what he
    had seen that morning. (Id. at 208.) Siefert never submitted a statement in spite of
    Deputy Verhoff’s attempts to obtain one from him. (Id. at 208.)
    {¶24} After talking to Siefert, Deputy Verhoff went to Mrs. Turnbell’s
    residence, where he learned that the suspect was about 5’7” tall, approximately
    180 pounds, and had a gun in his left hand. (Id. at 200.) Mrs. Turnbell thought
    that she had heard the intruder’s voice before and she thought it belonged to one
    Dustin Dyer. (Id. at 202-203.) Deputy Verhoff remained in contact with Mrs.
    Turnbell after the initial investigation and he later learned that the weight of the
    suspect was more like 160 pounds rather than 180 pounds. (Id. at 205.)
    {¶25} Deputy Verhoff located “a couple foot tracks” leading away from the
    home. (Id. at 181.) It appeared to be two sets of footprints leading away from the
    garage door, “where the home was broken into,” into the grass behind the
    residence. (Id. at 181, 203.) He found several items, which were located along the
    path from Mrs. Turnbell’s residence to Ritter’s home, including a Red Bull can
    and blue latex gloves. (Id. at 182-185.) Deputy Verhoff testified that the two
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    rubber gloves were different in shape, one was “more extended” while the other
    one was more “crumpled up.” (Id. at 188.) No fingerprints or tool marks were
    found in the residence. (Id. at 190.) The DNA found on the Red Bull can and the
    gloves implicated Hoffman. (Id. at 195.)
    {¶26} There was a partial fingerprint on the Red Bull can, which did not
    match Phillips’ fingerprints. (Id. at 194.) Testifying about the shoe impression
    found on the bank envelope, Deputy Verhoff confirmed that it was consistent with
    the shoes and socks obtained from Hoffman.          (Id. at 193.)   Deputy Verhoff
    testified that Phillips’ home was located very close to Ritter’s home, stating,
    “possibly the backyards are catty-corner to each other.” (Id. at 185-186.)
    Motion for Acquittal
    {¶27} At the end of the State’s case in chief, the defense moved for an
    acquittal pursuant to Crim.R. 29, asserting that the State had not put forth enough
    evidence to sustain a conviction. (Tr. at 242.) The trial court overruled the motion
    and the defense proceeded with its case in chief.
    Defendant’s Case in Chief
    Richard Siefert
    {¶28} Siefert testified that he had known Phillips for over twenty years; he
    also knew Phillips’ father. (Id. at 246-247.) He lived by Phillips’ house in April
    2012. On April 4, 2012, Siefert came home from work at about 1:00 a.m. and
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    stayed up for the rest of the night. (Id. at 248.) He was outside of his house at
    around 6:00 in the morning, waiting to take his son to his brother-in-law. (Id. at
    247-249.) He testified that “[t]he windows had frosted that morning, so [he] went
    out and started the truck about 20 till 6.” (Id. at 249.) It was dark outside and he
    was standing about 75-80 feet away from Phillips’ house. (Id. at 250, 252-253.)
    Siefert testified, “I looked up because the lights are never on over there that early
    in the morning. That morning they were on.” (Id. at 249.) He saw Phillips
    “walking from the fridge to the kitchen table putting stuff on the table like he was
    getting something to eat that morning.” (Id. at 249-250.) This was at about 5:40
    in the morning. (Id. at 250.) He also saw Phillips’ mother and sister at the kitchen
    table. (Id.) Siefert further testified that as he was getting into his vehicle at about
    6:05 that morning, he saw Phillips on the front porch of his house letting the dogs
    out, and he waved to him. (Id. at 249-250.)
    {¶29} The defense admitted into evidence a photograph depicting Phillips’
    house in the early morning hours, as seen from where Siefert was standing in the
    morning on April 4, 2012, which was a reasonable depiction of the lighting
    conditions on the date. (Id. at 251-253, 257; Def.’s Ex. A.) The photograph
    visibly showed Phillips standing in his kitchen, where the lights were on,
    illustrating for the jury Siefert’s ability to observe into Phillips’ kitchen without
    obstructions. (Id.)
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    {¶30} After observing the scene, Siefert left his home around 6:00 or 6:05
    a.m. and drove to his brother-in-law’s home. (Id. at 248, 253-254.) As he drove
    his ’91 Chevy pickup truck down Crabapple Drive, he saw two men “coming
    across the field from Crabapple and the old Snyder Park over to the new one.” (Id.
    at 253-254.) Siefert recognized one of the men due to his considerable size, and
    identified him as Jeremy Ritter. (Id. at 254-255.) As he was driving “uptown,” he
    saw “all the police officers headed down toward the house and the area there.”
    (Id. at 254.) He dropped off his son and after he got back on the road about fifteen
    minutes later, he saw a police officer and told him about the two men he had seen,
    identifying one of them as Ritter. (Id. at 254-255.) He also told the officer that
    the two men “went right down to Jeremy’s house.” (Id. at 255.) He went home
    after that and saw Phillips and his father loading their pickup truck. (Id. at 255-
    256.) He went to bed after that. (Id. at 256.)
    {¶31} Following the event, Siefert was contacted by the police with a
    request to fill out a report regarding his statements to the police officer on April 4,
    2012. (Id. at 256.) He responded, “I told you everything I know. I’ll think about
    filling it out.” (Id.) Siefert testified that when the police came again to ask about
    the report, “it made [him] mad, so [he] didn’t fill it out.” (Id. at 256.)
    {¶32} On cross-examination, Siefert stated that he had known about
    Phillips facing burglary charges since August 2012, when he had seen it in the
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    papers. (Id. at 260.) In spite of that, he never contacted the law enforcement to
    tell them that he had seen Phillips that morning in his house. (Id.)
    Roger Phillips
    {¶33} Defendant’s father, Roger Phillips (“Roger”), testified that he ran a
    lawn and snowplow service, in which he employed his son. (Id. at 262-263.) He
    admitted that he and his son had been to the Turnbell residence numerous times,
    but the last time they worked there was about five years prior to trial. (Id. at 270-
    271, 273.) Roger confirmed that Phillips was friends with Hoffman and Ritter, but
    he denied ever speaking with either Hoffman or Ritter personally. (Id. at 270.)
    {¶34} Roger testified that on April 4, 2012, he got up shortly after five in
    the morning and woke up Phillips, who was sleeping in his bedroom, so they could
    get ready for work. (Id. at 263, 273.) His wife and his daughter, Tammy Risner,
    were up that morning when he woke up. (Id. at 272.) Roger testified that Phillips
    did not leave the house at all between waking up and packing the pickup truck to
    go to work. (Id. at 273.) Later that morning, Roger noticed multiple police
    cruisers “going up and down the side streets and [his] street.” (Id. at 263.)
    {¶35} Roger testified that in the morning of April 4, 2012, he and Phillips
    mowed all athletic fields at Hopewell Loudon School, which was about 17 acres.
    (Id. at 265-268.) Roger testified that it took approximately 35 to 40 minutes to get
    there from his house and it was an all-day job, which had to be started “as close to
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    7 o’clock as possible.” (Id.) Although he did not know for certain what time he
    got to Hopewell that morning, he stated that they always started there at around
    7:00. (Id. at 271.) An invoice depicting charges for mowing Hopewell Loudon
    School by Roger’s business that day was submitted into evidence. (Id. at 265-268;
    Ex. B.) On cross-examination, Roger acknowledged that the invoice submitted as
    Exhibit B did not have any times on it and that the times given by him in his
    testimony were approximate. (Id. at 269.)
    {¶36} Roger admitted that he never explained to law enforcement what his
    son did on April 4, 2012. (Id. at 270.) He did not prepare any written statements
    about the events of that day. (Id.)
    Brenda Phillips
    {¶37} Brenda Phillips (“Brenda”), defendant’s mother, testified that she
    assisted Roger in bookkeeping for his business and preached at a Christian radio
    station about once a month. (Id. at 274-275.) She had prepared the invoice that
    was submitted as Exhibit B. (Id. at 275-276.) Brenda testified that Phillips was
    about 5’10” tall and he weighed about 140 pounds. (Id. at 281.) He worked with
    his father every day in the lawn care service. (Id. at 280.) Brenda confirmed that
    Mrs. Turnbell had been a customer of her husband’s business in the past. (Id. at
    280.)
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    {¶38} Brenda remembered the morning of April 4, 2012, because there had
    been a lot of police around the area that morning. (Id. at 279.) She testified that
    on the night of April 3, 2012, her family had a “game night” and multiple people
    participated until late, including her niece Randy Guzman, her daughter Tammy,
    her daughter Chelsea, and Phillips, who was home that night. (Id. at 276-277.)
    Brenda testified that Phillips went to bed for a couple of hours, but she was still
    up, playing games when he got up a little after five in the morning. (Id. at 277.)
    She testified that Phillips came to the table and had his breakfast; he also let the
    dogs out that morning. (Id. at 278.) After that, he got dressed and went to load the
    equipment on the truck. (Id. at 279.)
    {¶39} On cross-examination, Brenda confirmed that there were about two
    hours during the night, when Phillips was not involved in the games. (Id. at 282.)
    She explained that he went to his bedroom and could not have left the house
    without her seeing him. (Id. at 283.) When asked by the State, Brenda confirmed
    that her husband was convicted of felony theft in January 2005. (Id. at 283.)
    State’s Rebuttal
    {¶40} After Brenda’s testimony, the defense renewed its motion for
    acquittal, which was denied. The defense then rested and the State presented
    rebuttal witnesses.
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    Case No. 16-13-09
    Tamara J. Risner
    {¶41} Tamara J. Risner (“Tamara”), Phillip’s sister, confirmed that she was
    at Phillips’ parents’ residence in the early morning hours of April 4, 2012. (Id. at
    285-286.) She testified that Phillips came home around 2:00 or 3:00 o’clock in the
    morning wearing a gray sweatshirt and saying that he had been at Ritter’s. (Id. at
    286.) She claimed that Phillips was home for the rest of the night and she did not
    see him leave again. (Id. at 288.) Tamara remembered being interviewed by
    Lieutenant Frey and Angela Fultz, but denied telling them that Phillips “came
    running into the front door of the house” in the middle of the night or early
    morning hours. (Id. at 287.) She denied telling them that Phillips “was sweating,
    his hair was wet, and that he had sweat running down his face.” (Id. at 289.)
    Lieutenant Todd Frey
    {¶42} Lieutenant Todd Frey (“Lieutenant Frey”), from the Wyandot
    County Sheriff’s office, testified that he had interviewed Tamara about the events
    of April 4, 2012. (Id. at 289-290.) He prepared a written report concerning that
    interview, which he had brought with him to the stand. (Id. at 290.) During the
    interview with Lieutenant Frey Tamara did not specifically mention the times 2:00
    or 3:00 a.m., but she stated that Phillips “had come in the door, front door” in the
    middle of the night or early morning hours of April 4, 2012. (Id.) According to
    the report, Phillips “had sweat running down his face” and “his hair was wet.”
    - 20 -
    Case No. 16-13-09
    (Id.) Phillips told her that he had come from Ritter’s house and he then went to his
    bedroom. (Id. at 290-291.) After that, “she observed cops go by the house.” (Id.
    at 291.)
    Deputy Verhoff
    {¶43} Deputy Verhoff testified again and explained that he had come into
    contact with Siefert between approximately 6:25 and 6:30, after he had responded
    to the call about the burglary at 6:19 a.m. (Id. at 293.) Siefert was coming from
    the direction of his home, rather than going toward his home at that time. (Id.)
    Deputy Verhoff also stated that he had not observed any frost on windshields or
    the grass in the morning of April 4, 2012. (Id. at 294.)
    Eric Risner
    {¶44} Eric Risner (“Eric”), Phillips’ brother-in-law, was allowed to testify
    for the purpose of impeachment. He heard his wife Tamara talk about that night,
    saying that Phillips was sweating and that “he was probably out jogging.” (Id. at
    297-298.) He observed Phillips burning “a little brown bag” the following day on
    the porch. (Id. at 298.) Several days later, he observed Roger carrying out “stuff
    that was wrapped up in a tablecloth,” which he described as “big things.” (Id.)
    Rebuttal by the Defense
    {¶45} Roger was called by the defense and asked whether he remembered
    carrying anything out with tablecloth or moving any big objects around April 4
    - 21 -
    Case No. 16-13-09
    through 7, 2012. (Id. at 300.) Roger denied doing anything like that. (Id.) Roger
    stated that he used to have guns in the home in the past, “but not for the last ten
    years.” (Id.) Although he had a gun cabinet, it was empty and just used as
    storage. (Id. at 301.)
    Conclusion of the Trial and Post-Trial Proceedings
    {¶46} The defense renewed its motion for acquittal, which was again
    denied by the trial court. The jury returned a unanimous verdict, finding Phillips
    guilty of aggravated burglary.     (R. at 71.)   The court ordered a presentence
    investigation and continued the matter for sentencing. (R. at 73.)
    {¶47} Before the sentencing in this case occurred, Phillips filed “Motion for
    Judgment of Acquittal Rule 29 or in the Alternative Rule 33 Motion for New
    Trial.” (R. at 77.) This document was filed by Phillips pro se, although it does not
    appear that attorney Merle Dech had been discharged at that point. (See R. at 75.)
    As evidence in support of his motion, Phillips attached several documents that had
    not been submitted into evidence previously.
    {¶48} Attorney Dech withdrew as counsel of record in this matter and
    Phillips filed multiple other documents pro se. (See R. at 81, Ex. A; R. at 88, 89.)
    He included additional exhibits, including letters, statements, and affidavits, which
    had not been provided to the trial court before, and which concerned alleged
    - 22 -
    Case No. 16-13-09
    irregularities during proceedings in the trial court.1 (See, e.g., R. at 81, Ex. A; R.
    at 90, Ex. B, C.) The trial court assigned Phillips’ motions for a hearing and
    appointed another attorney, Shane Leuthold, to represent Phillips at the hearing.
    (See R. at 95, 97.)
    {¶49} On August 19, 2013, the trial court conducted a hearing on Phillips’
    motion for acquittal and the alternative motion for a new trial. The trial court
    denied both motions and sentenced Phillips to eight years in prison. (R. at 110.)
    From that ruling Phillips now appeals raising the following as his assignments of
    error.
    FIRST ASSIGNMENT OF ERROR: THERE                                                WAS
    INSUFFICIENT   EVIDENCE  TO   SUSTAIN                                           THE
    CONVICTION OF AGGRAVATED BURGLARY
    SECOND ASSIGNMENT OF ERROR: THE CONVICTION
    [FOR] AGGRAVATED BURGULARY [sic] WAS AGAINST
    THE MANIFEST WEIGHT OF THE EVIDENCE
    THIRD ASSIGNMENT OF ERROR: COUNSEL FOR THE
    DEFENDANT PROVIDED INEFFECTIVE ASSISTANCE OF
    COUNSEL
    FOURTH ASSINGMENT [sic] OF ERROR: THE COURT
    ERRED BY OVERRULING THE APPELLANT’S MOTION
    FOR RULE 29 DIRECTED AQUITTAL [sic]
    FIFTH ASSINGMENT [sic] OF ERROR: THE COURT
    ERRED BY OVERRULING THE DEFENDANT’S MOTION
    1
    Not all of the arguments made in Phillips’ trial court motions are before us on appeal. Therefore, we
    express no opinion on the arguments concerning irregularities at the arraignment, jury selection, and the
    trial, which were alleged in the trial court’s motions but are not raised here.
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    Case No. 16-13-09
    FOR NEW TRIAL PURSUANT TO CRIMINAL RULE OF
    PROCEDURE 33
    SIXTH ASSINGMENT [sic] OF ERROR: THE TRIAL COURT
    ERRED BY SENTENCING THE APPELLANT TO A TERM
    OF INCARCERATION OF EIGHT YEARS AND TRIAL
    TAXED HIM FOR EXERCISNG [sic] HIS RIGHT TO A JURY
    TRIAL
    1. First Assignment of Error—Sufficiency of the Evidence
    {¶50} In his first assignment of error, Phillips asserts that the evidence was
    insufficient to convict him of aggravated burglary. Under the indictment filed in
    this case, the State was required to prove that on or about the fourth day of April
    2012, Phillips by force, stealth, or deception, trespassed, by knowingly entering or
    remaining on the land or premises of Mrs. Turnbell, without privilege, when Mrs.
    Turnbell was present, with purpose to commit a criminal offense there, and that
    Phillips inflicted, or attempted or threatened to inflict physical harm on Mrs.
    Turnbell. (R. at 1, Indictment.) Phillips does not challenge all of the elements of
    the crime at issue. In this assignment of error Phillips only challenges the element
    concerning infliction and attempt or threat to inflict physical harm, as required by
    the indictment and by R.C. 2911.11(A)(1). Arguing that there is no evidence of
    any threat taking place, Phillips claims that the aggravating element is missing and
    demands reversal of his conviction.
    {¶51} When reviewing a criminal case for the sufficiency of the evidence,
    “our inquiry focuses primarily upon the adequacy of the evidence; that is, whether
    - 24 -
    Case No. 16-13-09
    the evidence submitted at trial, if believed, could reasonably support a finding of
    guilt beyond a reasonable doubt.” In re Willcox, 3d Dist. Hancock No. 5-11-08,
    
    2011-Ohio-3896
    , ¶ 10, citing State v. Thompkins, 
    78 Ohio St.3d 380
    , 386, 
    678 N.E.2d 541
     (1997). We look at the evidence in the light “most favorable to the
    prosecution” and we will affirm the conviction if “any rational trier of fact could
    have found the essential elements of the crime proven beyond a reasonable doubt.”
    State v. Hunter, 
    131 Ohio St.3d 67
    , 
    2011-Ohio-6524
    , 
    960 N.E.2d 955
    , ¶ 118.
    Importantly, this test raises a question of law and does not allow us to weigh the
    evidence. In re Willcox at ¶ 10. “In essence, sufficiency is a test of adequacy”—
    i.e., whether the evidence is legally sufficient to sustain a verdict as a matter of
    law. Thompkins, 78 Ohio St.3d at 386.
    {¶52} Phillips relies on the parts of Mrs. Turnbell’s testimony where she
    quoted the intruder as saying that he was not going to hurt her, to argue that there
    can be no finding of threat. He asserts that the intruder’s assurances that he was
    not going to hurt Mrs. Turnbell contradict the threat element. For that reason, he
    argues that the evidence was insufficient to convince an average mind beyond a
    reasonable doubt that the threat of harm occurred.
    {¶53} Nevertheless, Mrs. Turnbell testified that the intruder kept his gun
    constantly in her view and asked her for the money. The Ohio Supreme Court has
    recognized that,
    - 25 -
    Case No. 16-13-09
    [o]ne cannot display, brandish, indicate possession of, or use a
    deadly weapon in the context of committing a theft offense without
    conveying an implied threat to inflict physical harm. It is the very act
    of displaying, brandishing, indicating possession, or using the
    weapon that constitutes the threat to inflict harm because it
    intimidates the victim into complying with the command to
    relinquish property without consent.
    State v. Evans, 
    122 Ohio St.3d 381
    , 
    2009-Ohio-2974
    , 
    911 N.E.2d 889
    , ¶ 23.
    Therefore, for the purpose of conviction for aggravated burglary a defendant’s act
    of brandishing a weapon “is legally sufficient to support the jury’s finding of a
    threat of physical harm.” State v. Brewer, 2d Dist. Montgomery No. 24109, 2011-
    Ohio-2966, ¶ 14. The fact that the defendant subsequently assures the victim that
    they will not hurt her, “does not negate the existence of the threat,” because
    “[o]nce [the defendant] brandished the weapon, a threat to inflict physical harm
    had occurred.” 
    Id.
    {¶54} Further in support of the threat element, Hoffman and Ritter both
    testified that they had heard the orders given to Mrs. Turnbell and heard her
    scream. (Id. at 157, 167, 212, 219-221.) Ritter specifically testified that he had
    heard a scream and a yell “put your hands up,” although he did not know whose
    voice it was. (Id. at 157.) He also heard someone say “Get the fuck down.” (Id.
    167.) Hoffman heard someone yell “Freeze bitch” and he heard Mrs. Turnbell
    scream. (Id. at 220-221.)
    - 26 -
    Case No. 16-13-09
    {¶55} Therefore, there is sufficient evidence to conclude that the intruder
    brandished a weapon at Mrs. Turnbell and otherwise intimidated her into being
    submissive. The intruder’s actions, as described by the State’s witnesses, and
    viewed in the light most favorable to the prosecution, can certainly be construed as
    threatening Mrs. Turnbell with physical harm, in spite of his assurances to the
    contrary.
    {¶56} We recognize that Mrs. Turnbell never identified Phillips as the
    intruder who brandished the weapon at her. Yet, both Hoffman and Ritter testified
    that Phillips was the third person in Mrs. Turnbell’s house on the night in question
    and no other people were alleged to be present during the encounter with Mrs.
    Turnbell. (Trial Tr. at 149, 156, 210, 212.) Both accomplices testified that
    Phillips had a gun going into Mrs. Turnbell’s residence. Hoffman testified that
    Phillips had the black BB gun going into the burglary. (Id. at 212, 219.) There
    was also testimony of Phillips’ acquaintance, Kyle Shaw, who had sold Phillips
    the black BB gun, which looked like a semi-automatic pistol, sometime in the end
    of March or early April 2012. (Id. at 176.)
    {¶57} Furthermore, although the State did not provide the three men’s
    physical descriptions, the trial court pointed out that the jury was able to view
    them and recognize that neither Hoffman nor Ritter matched the description of the
    intruder given by Mrs. Turnbell. (See R. at 110, J. Entry, Aug. 22, 2013.) Mrs.
    - 27 -
    Case No. 16-13-09
    Turnbell described the intruder as being approximately 5 feet and 6 inches tall and
    weighing about 155 or 160 pounds, although she initially claimed that the weight
    was something about 180 pounds. In his testimony, Hoffman acknowledged that
    Ritter is “kind of a big guy,” while he (Hoffman) is “a little bit lighter.” (Id. at
    227-228.) Under the standard for reviewing sufficiency of the evidence, looking
    at the evidence in the light most favorable to the prosecution, this provided
    sufficient evidence for the jury to conclude that Phillips was the person
    brandishing a weapon in Mrs. Turnbell’s house and otherwise threatening her on
    April 4, 2012.
    {¶58} For all of the above reasons, we overrule Phillips’ first assignment of
    error, which challenges the sufficiency of the evidence for the threat of harm
    element of aggravated burglary.
    2. Second Assignment of Error—Manifest
    Weight of the Evidence
    {¶59} In this assignment of error, Phillips does not dispute any of the
    elements of aggravated burglary. Rather, he claims that because of his multiple
    alibi witnesses, doubtful credibility of the State’s witnesses, and lack of physical
    evidence placing him on the scene, the jury could not have reasonably found him
    guilty beyond a reasonable doubt. Here, Phillips challenges his involvement in
    this crime as being against the manifest weight of the evidence.
    - 28 -
    Case No. 16-13-09
    {¶60} The question of manifest weight of the evidence concerns an “effect
    in inducing belief.” Thompkins, 78 Ohio St.3d at 387. Therefore, it is not subject
    to a mathematical analysis. Id. When reviewing a conviction challenged for the
    manifest weight of the evidence, an appellate court acts as a “thirteenth juror” and
    may disagree with the jury’s resolution of the conflicting testimony. Id., quoting
    Tibbs v. Florida, 
    457 U.S. 31
    , 42, 
    102 S.Ct. 2211
    , 
    72 L.Ed.2d 652
     (1982). But the
    appellate court must give due deference to the findings of the jury, because
    [t]he fact-finder occupies a superior position in determining
    credibility. The fact-finder can hear and see as well as observe the
    body language, evaluate voice inflections, observe hand gestures,
    perceive the interplay between the witness and the examiner, and
    watch the witness’s reaction to exhibits and the like. Determining
    credibility from a sterile transcript is a Herculean endeavor. A
    reviewing court must, therefore, accord due deference to the
    credibility determinations made by the fact-finder.
    (Alteration omitted.) State v. Dailey, 3d Dist. Crawford, No. 3-07-23, 2008-Ohio-
    274, ¶ 7, quoting State v. Thompson, 
    127 Ohio App.3d 511
    , 529, 
    713 N.E.2d 456
    (8th Dist.1998). Therefore, an argument that a conviction is against the manifest
    weight of the evidence will only succeed if the appellate court finds that “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 reversed and a new trial
    ordered.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
     (1st Dist.1983).
    - 29 -
    Case No. 16-13-09
    {¶61} Both sides presented evidence relevant to the issue of Phillips’
    involvement in the crime and his presence at Mrs. Turnbell’s residence on the
    night in question. As cited above, the State provided evidence implicating Phillips
    in the crime through the testimony of Hoffman and Ritter. The two gave details of
    the crime, which were in many ways consistent with the testimony of Mrs.
    Turnbell and with the results of the investigation conducted by the police.
    {¶62} Phillips points to some irregularities in Hoffman and Ritter’s
    depictions of the crime, such as the discrepancy regarding whether Hoffman had a
    gun or whether he waited for Ritter behind the shed. (App’t Br. at 7-8.) Yet, in
    spite of the variations in Hoffman and Ritter’s testimony in describing some
    details of the crime, both were consistent in stating that Phillips told them about
    the money in Mrs. Turnbell’s residence, that Phillips was with them that night and
    he had a gun, that Phillips and Hoffman entered Mrs. Turnbell’s house while
    Ritter waited in the garage, and that Phillips stayed in Mrs. Turnbell’s residence
    after the two had fled. (Trial Tr. at 149-151, 153-156, 158-159, 212, 215-216,
    219, 222.) The jury was allowed to sort through the evidence and determine
    whether in view of the prior criminal history of the witnesses and the
    discrepancies in their testimony, Hoffman and Ritter’s statements about Phillips’
    involvement in the crime were believable. Unlike us, the jurors heard and saw
    Hoffman and Ritter at trial and had additional indicia of the witnesses’
    - 30 -
    Case No. 16-13-09
    truthfulness, such as their behavior at trial, “body language,” “voice inflections,”
    “hand gestures,” “interplay between the witness and the examiner,” and their
    “reaction to exhibits and the like.” Dailey, 
    2008-Ohio-274
    , at ¶ 7. We do not find
    that the discrepancies in the two accomplices’ testimonies were so significant as to
    render their statements utterly unreliable and the jury’s reliance on them,
    unreasonable.
    {¶63} Phillips alleges that Hoffman and Ritter could not be trusted because
    they had criminal records and “were willing to lie and say whatever they could to
    get a good deal.” (App’t Br. at 6.) We note that the jury was instructed that
    Hoffman and Ritter’s testimony “should be viewed with great suspicion and
    weighed with great caution.” (Trail Tr. at 343.) The trial court further instructed
    the jury that they were “not required to believe the testimony of any witness
    simply because he or she was under oath” and that they had to “determine what
    testimony is worthy of belief and what testimony is not worthy of belief.” (Id. at
    342.) It does not appear that the jury disregarded these instructions.
    {¶64} Hoffman and Ritter’s testimony regarding Phillips’ involvement in
    the crime was corroborated by other witnesses. For example, Shaw testified that
    he had sold Phillips a BB gun shortly before the burglary. Tamara stated that
    Phillips came home in the early morning hours on April 4, 2012, saying that he
    had been at Ritter’s house.      Lieutenant Frey testified about Tamara’s prior
    - 31 -
    Case No. 16-13-09
    statement that Phillips had come home that night sweaty, shortly before the police
    went by their house. Mrs. Turnbell testified about the height and weight of the
    intruder. Those features were similar to Phillips’ characteristics, as given by
    Phillips’ mother. Furthermore, as noted by the trial court, the jury could observe
    Phillips and consider whether his appearance matched the descriptions given by
    Mrs. Turnbell. (See R. at 110, at 3.)
    {¶65} Phillips further argues that the evidence at trial contradicted Hoffman
    and Ritter’s testimony about his involvement in the crime. For example, Mrs.
    Turnbell saw only one intruder and Siefert saw only two individuals coming from
    Crabapple Drive on the night in question. Apart from Hoffman and Ritter, no
    other witness attested to three individuals being involved in the crime. He claims
    that the police investigation did not reveal involvement of a third individual either,
    because there were only two sets of foot tracks leading from Mrs. Turnbell’s
    house. He emphasizes the fact that no physical evidence places him on the crime
    scene. While multiple pieces of evidence pointed to Hoffman being present at
    Mrs. Turnbell’s house, and a witness saw Ritter close to the crime scene, nothing
    implicated Phillips, other than the testimony of the two criminals. He further
    points to the fact that the forensic tests only found Hoffman’s DNA on the Red
    Bull can, although Hoffman testified that Phillips had drunk from it too.
    - 32 -
    Case No. 16-13-09
    {¶66} Nevertheless, there was circumstantial evidence corroborating
    Hoffman and Ritter’s testimony, as detailed above. Furthermore, the front door
    found open after the burglary corroborates Hoffman and Ritter’s statements that
    Hoffman ran through the front door; while the two sets of foot tracks leading from
    the garage indicate that two more individuals used that avenue of escape, showing
    that there were at least three intruders in Mrs. Turnbell’s house. “Circumstantial
    evidence and direct evidence have the same probative value.” State v. Adams, 3d
    Dist. Crawford No. 3-06-24, 
    2007-Ohio-4932
    , ¶ 21, citing State v. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991), paragraph one of the syllabus. Therefore,
    while the jury was allowed to infer a reasonable doubt from the lack of direct
    physical evidence placing Phillips on the scene, its reliance on Hoffman and
    Ritter’s testimony and on the circumstantial evidence to infer Phillips’
    involvement in the crime beyond a reasonable doubt was not prohibited.
    {¶67} Phillips claims that he had multiple alibi witnesses—Siefert and his
    parents saw him at home during the time when the burglary was taking place.
    (App’t Br. at 9.) Nevertheless, as the State pointed out to the jury, all three of
    these witnesses waited until the day of trial to disclose the alibi, rather than make
    the statements to the police earlier to exculpate Phillips, even though they knew
    that Phillips had been charged with this crime in August 2012.
    - 33 -
    Case No. 16-13-09
    {¶68} Phillips argues that Siefert and his family members’ statements were
    more credible than Hoffman and Ritter’s. Nevertheless, Siefert’s testimony, or at
    least his recollection of the order and timing of the events, was called into question
    by the statements of Deputy Verhoff, who stated that Siefert was coming from the
    direction of his home, rather than going toward his home at the time when he
    talked to him at about 6:30 in the morning. Deputy Verhoff also contradicted
    Siefert’s claim that there was frost on the windshields on the morning of April 4,
    2012, which would require Siefert to go outside of his house twenty minutes prior
    to 6:00 a.m. to warm up his car. Siefert’s refusal to make a written statement to
    the police, in spite of multiple requests to do so, might also have affected the
    jury’s receptiveness to his testimony at trial.
    {¶69} Roger and Brenda’s testimony that Phillips was at home all night
    was directly contradicted by their daughter Tamara’s testimony, who saw Phillips
    come home from Ritter’s house at some time in the early morning hours of April
    4, 2012. In turn, Tamara’s testimony that Phillips was home on April 4, 2012,
    since around 2:00 or 3:00 in the morning, was undermined by Lieutenant Frey and
    her husband Eric, both testifying that Tamara gave prior inconsistent statements
    about that night. Roger’s credibility was undermined in other ways as well. Ritter
    claimed that he had met with Roger and talked to him about the crime, but Roger
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    Case No. 16-13-09
    testified that he had never talked to Ritter. Roger’s wife indicated that Roger had
    a prior felony theft conviction.
    {¶70} Although Phillips claims that his witnesses were more credible than
    Hoffman and Ritter, we do not find that the jury lost its way in believing Hoffman
    and Ritter rather than Siefert, Roger, and Brenda. The jury, as the trier of facts,
    “may believe or disbelieve any witness or accept part of what a witness says and
    reject the rest.” State v. Antill, 
    176 Ohio St. 61
    , 67, 
    197 N.E.2d 548
     (1964); State
    v. Davis, 3d Dist. No. 9-06-56, 
    2007-Ohio-4741
    , ¶ 40.         The alibi testimony
    presented by defense witnesses was undermined in multiple ways, while Hoffman
    and Ritter’s testimony regarding Phillips’ participation in the burglary was
    corroborated by other evidence and by Tamara and Eric’s testimony.
    {¶71} Phillips claims that he could not have committed the crime because
    he went to work at Hopewell Loudon School, which was located about 35-40
    minutes away from Phillips’ house, and that he left shortly after 6:00 to be there
    by 7:00 a.m. Nevertheless, an invoice introduced as a proof of this fact merely
    showed that Roger’s business performed yard work at Hopewell Loudon School
    on April 4, 2012. The invoice did not exhibit the time at which the work started
    and it did not show that Phillips was actually the person performing the work on
    that day.   Furthermore, the invoice was prepared by Phillips’ mother, whose
    credibility was undermined by her own daughter’s testimony. In addition, the
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    Case No. 16-13-09
    invoice, even if believed by the jury, did not contradict their finding that Phillips
    was at Mrs. Turnbell’s residence prior to 6:19 a.m. Phillips could have been
    involved in the burglary, which had occurred prior to 6:19 a.m., when it was
    reported to Deputy Verhoff, and still have gone to Hopewell Loudon School,
    which was located about 35-40 minutes away, to work there at approximately 7:00
    a.m.
    {¶72} Although the trial transcript shows many deficiencies in both parties’
    versions of events, we cannot say that the jury clearly lost its way in resolving
    conflicts in evidence and finding that Phillips was involved in the burglary of Mrs.
    Turnbell’s residence.    Therefore, the conviction was not against the manifest
    weight of the evidence and the second assignment of error is overruled.
    3. Third Assignment of Error—Ineffective
    Assistance of Counsel
    {¶73} In his third assignment of error, Phillips asserts that his trial counsel,
    Mr. Dech, was ineffective in several respects, which we discuss separately below
    in parts a-c of this assignment of error.        In order to prevail on a claim of
    ineffective assistance of counsel, a criminal defendant must first show that the
    counsel’s performance was deficient in that it fell “below an objective standard of
    reasonable representation.” State v. Keith, 
    79 Ohio St.3d 514
    , 534, 
    684 N.E.2d 47
    (1997).   Second, the defendant must show “that the deficient performance
    prejudiced the defense so as to deprive the defendant of a fair trial.” 
    Id.,
     citing
    - 36 -
    Case No. 16-13-09
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
    (1984). In order to demonstrate prejudice, the defendant must prove a reasonable
    probability that the result of the trial would have been different but for his or her
    counsel’s errors. 
    Id.
     In applying these standards, the court must “indulge a strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance.” State v. Cassano, 
    96 Ohio St.3d 94
    , 
    2002-Ohio-3751
    ,
    
    772 N.E.2d 81
    , ¶ 108, quoting Strickland, 
    466 U.S. at 669
    . Therefore, the court
    must be highly deferential in its scrutiny of counsel’s performance.        State v.
    Walker, 
    90 Ohio App.3d 352
    , 359, 
    629 N.E.2d 471
     (3d Dist.1993), quoting
    Strickland, 
    466 U.S. at 689
    .
    a. Failure to Remove a Juror
    {¶74} As his first claim under this assignment of error, Phillips alleges that
    his counsel was ineffective by failing to remove a member of the jury. During the
    examination of the jury, the prosecutor asked many questions, including whether
    anyone of the prospective jurors had done any investigation on their own or had
    heard anything about this case. (Trial Tr. at 33-34.) The prosecutor then read a
    list of potential witnesses in the case, asking whether any of the jurors knew the
    witnesses and whether they would be able to judge their testimony impartially and
    fairly. (Id. at 36.) The defense counsel asked, among others, whether the jury
    would follow the instructions of the trial court and consider the case carefully,
    - 37 -
    Case No. 16-13-09
    holding the State to its burden of proof, and whether they could be fair jurors to
    Phillips as well as to the State. (Id. at 48, 51.) After the defense had exercised all
    of its peremptory challenges, Ms. Lynn Payton was called in to the jury box. The
    trial court and the two attorneys had an opportunity to question her as a
    prospective juror. The following exchange occurred:
    THE COURT: Lynn, now that you’re up there, do you wish you
    would have responded to any of the questions?
    MS. PAYTON: No.
    THE COURT: Okay. Mr. Miller.
    MR. MILLER: Ms. Payton, can you judge this case and base a
    verdict on the evidence that you here [sic] within the four walls of
    this courtroom?
    MS. PAYTON: Yes.
    MR. MILLER: Nothing further.
    THE COURT: Mr. Dech.
    MR. DECH: Thank you. Ms. Payton, do you feel you could be a fair
    and impartial juror in this case?
    MS. PAYTON: I do.
    MR. DECH: And if we were to reverse the roles, would you want
    someone in your present mental disposition to sit as a juror in this
    case?
    MS. PAYTON: Sure.
    MR. DECH: Okay. And you’ll uphold the State of Ohio to its
    burden of proof?
    MS. PAYTON: Yes.
    MR. DECH: And if they don’t prove this case beyond a reasonable
    doubt, your finding must be not guilty. You can follow that?
    MS. PAYTON: Yes, I can.
    MR. DECH: Okay. If you see anybody, can you say—if you make a
    finding of not guilty, you’ll stand by it; you wouldn’t be reluctant
    about it?
    MS. PAYTON: Yes.
    MR. DECH: Okay. Is there any reason you would not be a fair and
    impartial juror in this case?
    MS. PAYTON: No.
    - 38 -
    Case No. 16-13-09
    MR. DECH: Okay. Thank you.
    THE COURT: Ms. Payton I would be remiss if I did not bring this
    out. You work in the Clerk of Court’s office, correct?
    MS. PAYTON: Yes, I do.
    THE COURT: Papers involving this case have been filed through
    that office?
    MS. PAYTON: I’m involved in the paper flow, yes.
    THE COURT: Has there been anything that has come through your
    hands about this case or been said about this case in your presence
    that sticks with you that would influence you one way or the other?
    MS. PAYTON: I don’t believe so.
    THE COURT: So you’re assuring us you could be fair and
    impartial?
    MS. PAYTON: I think so.
    THE COURT: Okay. Pass for cause?
    MR. MILLER: Yes, Your honor.
    THE COURT: Mr. Dech?
    MR. DECH: I pass for cause, too.
    (Id. at 68:6-70:13.)
    {¶75} In his brief, Phillips speculates that the defense counsel did not know
    about Ms. Payton’s occupation prior to the trial judge bringing it to his attention
    and that Ms. Payton “chose to withhold this information.” (See App’t Br. at 11-
    12.) The record does not support this speculation. Nevertheless, even assuming
    that the defense counsel was indeed unaware of Ms. Payton’s employment at the
    Clerk of Court’s office and that his performance was deficient for not informing
    himself about her occupation ahead of time, there is no prejudice alleged or shown
    by this fact. The trial court disclosed Ms. Payton’s occupation in open court and
    the defense counsel had an opportunity to question her about her ability to judge
    this case.
    - 39 -
    Case No. 16-13-09
    {¶76} Phillips alleges that the trial counsel “didn’t even notice that Lynn
    Payton had affixed her signature on the indictment itself,” to certify that it was “a
    full, true and correct copy of the original Indictment.” (App’t Br. at 13; 
    id.
     Ex. A.)
    We note that the indictment provided in the record does not have Ms. Payton’s
    signature affixed to it. (R. at 1.) Yet, assuming that Ms. Payton’s signature did
    appear on the indictment’s certification, there is no support for the allegation that
    the trial counsel “didn’t even notice” it, or that he was deficient in this respect.
    Furthermore, as the trial court noted in its judgment entry denying Phillips’
    motions for acquittal and for new trial, there could have been no prejudice from
    Ms. Payton’s signing of the indictment. (R. at 110, J. Entry at 6-7.) Ms. Payton
    attested that she was not familiar with the case. But, even if she had read the
    indictment previously, she would not have obtained any knowledge outside of the
    record because, as the trial court noted, the indictment was a public record and was
    read to the entire jury during the trial. (Id.; Trial Tr. at 344-345.)
    {¶77} Phillips alleges that the defense counsel was ineffective “for not at
    least trying to have [Ms. Payton] removed for cause.” (App’t Br. at 13.) In order
    to win a challenge based on ineffective assistance due to the trial counsel’s failure
    to “at least try” to remove Ms. Payton for cause, Phillips would have to show (1)
    the trial counsel’s failure to “at least try” fell below an objective standard of
    reasonable representation. See Keith, 79 Ohio St. 3d at 534. He then would have
    - 40 -
    Case No. 16-13-09
    to show a reasonable probability that (2) the result of the trial would have been
    different had the trial counsel “at least tried” to remove Ms. Payton for cause. See
    id. Phillips fails to do so.
    {¶78} We have previously repeatedly held that a prospective juror will not
    be excused from a criminal trial for cause by a virtue of his or her employment
    with the State of Ohio where no bias by the juror is shown. State v. Sims, 
    20 Ohio App.2d 329
    , 332, 
    253 N.E.2d 822
     (3d Dist.1969); see also State v. Allsup, 3d Dist.
    Hardin No. 6-10-09, 
    2011-Ohio-404
    , ¶¶ 46-52. Even the fact that the juror is a
    state employee and knows witnesses or attorneys involved in the case does not
    render the juror automatically biased against the criminal defendant. State v.
    Stockton, 3d Dist. Shelby No. 17-96-15, 
    1997 WL 232245
    , *5 (May 5, 1997). In
    order to excuse a juror for cause, something more is needed. A list of possible
    causes for juror challenges is provided in R.C. 2313.17 and Crim.R. 24.2 Phillips
    does not assert that any of those causes existed in this case.
    2
    R.C. 2313.17 states,
    (B) The following are good causes for challenge to any person called as a juror:
    (1) That the person has been convicted of a crime that by law renders the person
    disqualified to serve on a jury;
    (2) That the person has an interest in the cause;
    (3) That the person has an action pending between the person and either party;
    (4) That the person formerly was a juror in the same cause;
    (5) That the person is the employer, the employee, or the spouse, parent, son, or daughter
    of the employer or employee, counselor, agent, steward, or attorney of either party;
    (6) That the person is subpoenaed in good faith as a witness in the cause;
    (7) That the person is akin by consanguinity or affinity within the fourth degree to either
    party or to the attorney of either party;
    (8) That the person or the person’s spouse, parent, son, or daughter is a party to another
    action then pending in any court in which an attorney in the cause then on trial is an
    attorney, either for or against any such party to another such action;
    - 41 -
    Case No. 16-13-09
    {¶79} Phillips alleges no bias stemming from Ms. Payton’s occupation or
    the fact that her signature appeared on the certification to the copy of the original
    indictment. Ms. Payton admitted that she was involved in the paper flow in the
    (9) That the person discloses by the person’s answers that the person cannot be a fair and
    impartial juror or will not follow the law as given to the person by the court.
    (C) Each challenge listed in division (B) of this section shall be considered as a principal
    challenge, and its validity tried by the court.
    (D) In addition to the causes listed in division (B) of this section, any petit juror may be
    challenged on suspicion of prejudice against or partiality for either party, or for want of a
    competent knowledge of the English language, or other cause that may render the juror at
    the time an unsuitable juror. The validity of the challenge shall be determined by the
    court and be sustained if the court has any doubt as to the juror's being entirely unbiased.
    Crim.R. 24(C) states that a “person called as a juror may be challenged for the following causes:”
    (1) That the juror has been convicted of a crime which by law renders the juror
    disqualified to serve on a jury.
    (2) That the juror is a chronic alcoholic, or drug dependent person.
    (3) That the juror was a member of the grand jury that found the indictment in the case.
    (4) That the juror served on a petit jury drawn in the same cause against the same
    defendant, and the petit jury was discharged after hearing the evidence or rendering a
    verdict on the evidence that was set aside.
    (5) That the juror served as a juror in a civil case brought against the defendant for the
    same act.
    (6) That the juror has an action pending between him or her and the State of Ohio or the
    defendant.
    (7) That the juror or the juror’s spouse is a party to another action then pending in any
    court in which an attorney in the cause then on trial is an attorney, either for or against
    the juror.
    (8) That the juror has been subpoenaed in good faith as a witness in the case.
    (9) That the juror is possessed of a state of mind evincing enmity or bias toward the
    defendant or the state; but no person summoned as a juror shall be disqualified by reason
    of a previously formed or expressed opinion with reference to the guilt or innocence of
    the accused, if the court is satisfied, from the examination of the juror or from other
    evidence, that the juror will render an impartial verdict according to the law and the
    evidence submitted to the jury at the trial.
    (10) That the juror is related by consanguinity or affinity within the fifth degree to the
    person alleged to be injured or attempted to be injured by the offense charged, or to the
    person on whose complaint the prosecution was instituted; or to the defendant.
    (11) That the juror is the person alleged to be injured or attempted to be injured by the
    offense charged, or the person on whose complaint the prosecution was instituted, or the
    defendant.
    (12) That the juror is the employer or employee, or the spouse, parent, son, or daughter of
    the employer or employee, or the counselor, agent, or attorney, of any person included in
    division (C)(11) of this rule.
    (13) That English is not the juror's native language, and the juror’s knowledge of English
    is insufficient to permit the juror to understand the facts and the law in the case.
    (14) That the juror is otherwise unsuitable for any other cause to serve as a juror.
    - 42 -
    Case No. 16-13-09
    Clerk of Court’s office, but she did not believe that she had been exposed to any
    information that would give her special prior knowledge of this case. During the
    trial, the court stated for the record that the evidence, which was filed and sealed
    by the clerk’s office, was not given to Ms. Payton to file. (Trial Tr. at 189.) The
    defense counsel confirmed his understanding of that fact and stipulated to it. (Id.)
    {¶80} The trial counsel could have reasonably relied on Ms. Payton’s
    answers to multiple questions from the trial court, the prosecution, and from
    himself, where Ms. Payton indicated that she did not know anything about the case
    and she could be fair and impartial. Accordingly, the defense counsel’s failure to
    “at least try” to remove her for cause is not sufficient to rebut the “strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance.” Cassano, 
    2002-Ohio-3751
    , at ¶ 108.
    {¶81} Phillips does not provide any law to support even the possibility that
    the trial court would have removed Ms. Payton from the jury for cause had
    defense counsel requested it. The Second District Court of Appeals was faced
    with an allegation of ineffective assistance of counsel were the trial attorney
    allowed a juror employed as a deputy clerk in the county’s municipal court to
    serve on a jury. State v. McKinney, 
    80 Ohio App.3d 470
    , 
    609 N.E.2d 613
     (2d
    Dist.1992). That appellate court refused to infer prejudice and bias so as to render
    the clerk “an unfit juror,” without any assertion that the clerk had prior knowledge
    - 43 -
    Case No. 16-13-09
    of the case. Id. at 476-477. Similarly, in spite of the possibility that Ms. Payton
    had signed the certification of the indictment in her professional capacity, Phillips
    does not allege that she had any prior knowledge of the case. Conversely, the
    transcript of the jury voir dire reflects that Ms. Payton was not familiar with the
    case.
    {¶82} Moreover, there is no prejudice, alleged or shown, from Ms.
    Payton’s participation in the jury deliberations. “Neither the Ohio Rules of Civil
    Procedure nor the Ohio Revised Code contains a provision that a court employee
    is presumed to be biased as a juror. See R.C. 2313.42 [recodified as RC 2313.17];
    Crim.R. 24.” McKinney, 80 Ohio App.3d at 476; accord State v. Saunders, 4th
    Dist. Ross No. 1896, 
    1993 WL 524968
    , *7-8 (Dec. 1, 1993) (rejecting a claim that
    a juror employed as a deputy clerk of courts in the same county’s juvenile court or
    a juror employed as assistant to the warden at a correctional institution should
    automatically be rendered “biased against a criminal defendant”). The burden of
    showing a juror’s bias is upon the challenger. State v. Warner, 
    55 Ohio St.3d 31
    ,
    47, 
    564 N.E.2d 18
     (1990), quoting Reynolds v. United States, 
    98 U.S. 145
    , 157, 
    25 L.Ed. 244
     (1878). Phillips does not allege that Ms. Payton’s occupation or her
    signature on the certification page for the indictment influenced her or the jury in
    any way, resulting in the finding of guilty. The voir dire examination of Ms.
    Payton does not reveal any bias or prejudice against Phillips. On the contrary, Ms.
    - 44 -
    Case No. 16-13-09
    Payton repeatedly assured the court, the prosecutor, and the defense counsel that
    she could be impartial and that she would follow the law in this case.
    {¶83} Therefore, even if the defense counsel had requested removal of Ms.
    Payton for cause, there is no reasonable probability that the trial court would have
    granted the request and no reasonable probability that the result of the jury
    deliberations would have been different. In view of these facts and the lack of any
    indication of bias, we reject Phillips’ argument that his trial counsel was
    ineffective by failing to remove Ms. Payton from the jury.
    b. Failure to Request a Copy of Hoffman and Ritter’s
    Grand Jury Testimony
    {¶84} Phillips argues that his trial counsel was ineffective because he had
    not ordered the transcript of Hoffman and Ritter’s grand jury testimony. We reject
    this allegation for several reasons.
    {¶85} Phillips does not submit why the grand jury testimony was essential
    to his defense and does not even allege that the grand jury testimony would have
    revealed anything that would support his acquittal. He argues that the defense
    counsel should have requested the grand jury testimony because if he had, the
    State would have been required to turn it in under Crim.R. 16. (App’t Br. at 14.)
    Of note, Phillips does not allege that the grand jury testimony would have showed
    inconsistencies in Hoffman and Ritter’s stories. Rather he suggests that the trial
    counsel should have obtained Hoffman and Ritter’s grand jury testimony to
    - 45 -
    Case No. 16-13-09
    “compare it to their original statements to police as well as what they said at trial.”
    (Id.)   This statement, in itself, shows that Phillips’ allegation of ineffective
    assistance must fail, as the claim that “the result of the trial would have been
    different” if the trial counsel had requested the grand jury testimony, is completely
    speculative. See Keith, 79 Ohio St. 3d at 534.
    {¶86} Furthermore, the inconsistencies in Hoffman and Ritter’s accounts of
    the events on April 4, 2012, were revealed at trial and weighed by the jury. As
    stated above, those inconsistencies did not go to the elements of aggravated
    burglary or to the issue of Phillips’ involvement in the crime. The jury was
    informed that the two accomplices had prior criminal records and were offered
    more beneficial sentences in exchange for their testimony against Phillips. The
    jury was then instructed on how to weigh their testimony. The claim that the
    grand jury testimony would have further undermined their credibility in such a
    manner that the jury would have acquitted Phillips does not amount to “a
    reasonable probability that the result of the trial would have been different.”
    Keith, 79 Ohio St. 3d at 534.
    {¶87} Accordingly, Phillips cannot satisfy a claim of ineffective assistance
    of counsel based on the alleged failure to request a copy of the grand jury
    testimony.
    - 46 -
    Case No. 16-13-09
    c. Failure to Object or Call Witnesses
    {¶88} As his next contention under this assignment of error, Phillips asserts
    that the trial counsel should have objected to the State’s question directed to
    Brenda about Roger’s 2005 conviction for felony theft. “[F]ailure to object to
    error, alone, is not enough to sustain a claim of ineffective assistance.” State v.
    Campbell, 
    69 Ohio St.3d 38
    , 52-53, 
    630 N.E.2d 339
     (1994), quoting State v.
    Holloway, 
    38 Ohio St.3d 239
    , 244, 
    527 N.E.2d 831
     (1988). “Because ‘objections
    tend to disrupt the flow of a trial, and are considered technical and bothersome by
    the fact-finder,’ competent counsel may reasonably hesitate to object in the jury’s
    presence.”    (Alterations omitted.)   Id. at 53, quoting Jacobs, Ohio Evidence
    (1989), at iii-iv.
    {¶89} Like with the prior arguments regarding the counsel’s deficiency,
    Phillips fails to show how this alleged error deprived him of a fair trial. Even if
    the trial counsel had objected to the State’s question and Brenda’s testimony about
    Roger’s 2005 conviction had not been heard by the jury, Roger’s truthfulness was
    otherwise undermined by Tamara, Eric, and Ritter, who gave statements
    contradicting Roger’s various declarations. Roger’s testimony as an alibi witness
    was further undermined by the fact that he had waited for months to disclose the
    purported alibi, while knowing about his son facing charges for this felony since
    August 2012.
    - 47 -
    Case No. 16-13-09
    {¶90} Under this assignment of error Phillips also claims that his defense
    counsel failed to “call important witnesses.” (App’t Br. at 14.) No argument is
    provided to support this claim so as to rebut the “strong presumption that
    counsel’s conduct falls within the wide range of reasonable professional
    assistance,” or to show that the result of the trial would have been different if the
    trial counsel had called more witnesses, raised more objections, or provided more
    evidence. Cassano, 
    2002-Ohio-3751
    , at ¶ 108, quoting Strickland, 
    466 U.S. at 689
    ; Keith, 79 Ohio St. 3d at 534.
    {¶91} For all of the foregoing reasons, Phillips’ third assignment of error is
    overruled.
    4. Fourth Assignment of Error—Motion for Acquittal
    {¶92} Phillips’ argument in his fourth assignment of error, states, in its
    entirety
    The facts and arguments for a Rule 29 motion for directed acquittal
    have been set forth under the assignments of error for sufficiency
    and manifest weight of the evidence. Appellate counsel incorporates
    those arguments as fully restated herein.
    (App’t Br. at 15.) In response to this legal argument, based upon our previous
    discussion of the first and second assignment of error, we overrule the fourth
    assignment of error.
    - 48 -
    Case No. 16-13-09
    5. Fifth Assignment of Error—Motion for New Trial
    {¶93} In support of his contention that his motion for new trial should have
    been granted, Phillips asserts two grounds under Crim.R. 33: (1) misconduct of the
    jury due to the inclusion of Ms. Payton on the jury panel, and (2) prosecutorial
    misconduct due to the State allegedly allowing perjured testimony at trial. See
    Crim.R. 33(A)(2).
    {¶94} As to the first claim, no misconduct of the jury has been alleged or
    proved. We have already discussed above that no basis for excluding Ms. Payton
    from the jury has been provided to the trial court and no evidence about Ms.
    Payton’s bias or improper effect on the jury has been revealed. With respect to the
    second claim, Phillips continues to argue that Hoffman and Ritter lied on the stand
    and alleges that the State engaged in misconduct by offering their testimony,
    which the State allegedly knew to be false.
    {¶95} The Ohio Supreme Court held that, a prosecutorial misconduct and a
    denial of due process occurs when the state knowingly uses false or perjured
    testimony “if there is any reasonable likelihood that the false testimony could have
    affected the judgment of the jury.” State v. Iacona, 
    93 Ohio St.3d 83
    , 97, 
    752 N.E.2d 937
     (2001), quoting United States v. Lochmondy, 
    890 F.2d 817
    , 822 (6th
    Cir.1989). In order to prove the denial of due process as a result of prosecutorial
    misconduct, the defendant must show that “(1) the statement was actually false;
    - 49 -
    Case No. 16-13-09
    (2) the statement was material; and (3) the prosecution knew it was false.” Id.; see
    also State v. Snyder, 3d Dist. Seneca No. 13-12-38, 
    2013-Ohio-2046
    , ¶ 43, quoting
    State v. Twyford, 
    94 Ohio St.3d 340
    , 355, 
    763 N.E.2d 122
     (2002) (“In assessing
    the existence of prosecutorial misconduct, we are mindful that ‘the touchstone of
    this analysis is the fairness of the [proceeding], not the culpability of the
    prosecutor.’ ”). Under this standard, we hold that there was no due process
    violation and Phillips is not entitled to new trial.
    {¶96} On appeal, Phillips does not specify which of the purportedly false
    statements were intentionally introduced by the State in spite of its alleged
    knowledge that they were not true. His pro se motion in the trial court, however,
    alleged that the State engaged in misconduct by failing to impeach Hoffman, who
    had supposedly previously stated that he had carried a .32 pistol during the
    robbery on Mrs. Turnbell’s residence, but then testified differently at trial. (R. at
    77 at 5, 32, 35). We note that there is no evidence that Hoffman or Ritter lied on
    the stand. No proof has been introduced that Hoffman did indeed carry a gun into
    the burglary or that the State knew about it and allowed Hoffman to testify that he
    did not have a gun.
    - 50 -
    Case No. 16-13-09
    {¶97} Phillips relies on statements that he claims had been made, but were
    not before the trial court,3 such as “brag[ging] to a fellow inmate” or giving prior
    inconsistent statements in a recorded interview. (R. at 77, at 5, 32; App’t Br. at
    17.) These statements, even if true, would not warrant a reversal of Phillips’
    conviction because they were not material to his prosecution. The statements did
    not concern any of the elements of the crime, or Phillips’ involvement in the
    burglary. Although Phillips might argue that pointing out another inconsistency in
    Hoffman’s testimony would have resulted in jury’s disbelieving his statement
    about Phillips’ involvement in the crime, both accomplices were subject to cross-
    examination and were asked about their prior inconsistent statements.                               Their
    credibility was challenged multiple times by the defense counsel through pointing
    out that they had had prior felony convictions and had agreed to testify against
    Phillips in exchange for more beneficial sentences. Hoffman’s testimony that he
    did not have a gun during the burglary was undermined by Ritter’s testimony to
    the contrary. We therefore cannot say that the State’s failure to correct Hoffman’s
    answer regarding his use of a gun during the burglary would have changed the
    jury’s evaluation of his credibility. See Iacona, 93 Ohio St.3d at 97 (reaching
    similar conclusion where the state failed to correct its witness’s answer that was
    contrary to facts).
    3
    After trial, Phillips moved to supplement the trial court’s record with CDs of, what he had claimed to be,
    interviews of Hoffman and Ritter. (R. at 114.) The trial court denied the request and therefore, this
    evidence is not before us. (See J. Entry, Sept. 17, 2013.)
    - 51 -
    Case No. 16-13-09
    {¶98} Concluding, Phillips fails to satisfy any of the three elements
    required for a new trial based on prosecutorial misconduct and he does not show
    any misconduct by the jury. Accordingly, his motion for new trial was properly
    denied and his fifth assignment of error is overruled.
    6. Sixth Assignment of Error—Improper Sentencing
    {¶99} In this assignment of error, Phillips does not allege that his sentence
    was improper under the statutory guidelines. Rather, he claims that it was too
    harsh when compared to the sentences received by Hoffman and Ritter. Phillips
    asserts that the circumstances of the crime were the same for all three offenders
    and the victim suffered one, indivisible harm as a result of the burglary. He
    further highlights the fact that unlike Hoffman and Ritter, he had no prior criminal
    record. He contends that in view of these facts, the discrepancy between his
    sentence and sentences of his accomplices can only be explained as a “ ‘trial tax[]’
    for exercising his constitutional right to a jury trial,” and is unconscionable.
    (App’t Br. at 18-19.)
    {¶100} Phillips cites City of Columbus v. Bee, where the Tenth District
    Court of Appeals reversed a sentence imposed by the trial court, upon finding that
    the lower court had ignored the sentencing guidelines in arbitrarily imposing the
    maximum allowed penalty “as a price of ignoring the court’s plea bargaining
    recommendation.”        
    67 Ohio App.2d 65
    , 
    425 N.E.2d 409
     (10th Dist.1979),
    - 52 -
    Case No. 16-13-09
    paragraph 2 of the syllabus. The facts of Bee were significantly different than
    Phillips’ case and his reliance on the opinion of the Tenth District Court of
    Appeals in requesting reversal is meritless. In Bee, the trial court participated in
    the plea negotiations and indicated “that probation was a possibility if there was a
    plea of no contest (and therefore no trial), but would probably not be given if [the
    defendant] went to trial and was convicted.” Id. at 74. The defendant “ultimately
    received the maximum sentence without any consideration of statutory sentencing
    guidelines,” which made it “clear that [she] was penalized for insisting on a trial.”
    (Emphasis added.) Id. at 74-75. Here, the record does not reflect that any plea
    negotiations took place and no allegations are made that the trial court participated
    in such negotiations. Phillips did not receive the maximum sentence for the crime,
    which was up to eleven years. R.C. 2929.14. The record reflects that the trial
    court did consider the statutory sentencing guidelines. (See, e.g., R. at 109, at 3-4;
    Sentencing Tr.) Therefore, there is no support for Phillips’ assertion that his case
    is similar to Bee and that he was penalized for going to trial.
    {¶101} We previously rejected an allegation that a trial court was imposing
    “a trial tax” when it sentenced a defendant to a longer prison term than the term
    given to his companions who pled guilty to the same crime. See State v. Shoe, 3d
    Dist. Hancock No. 5-92-12, 
    1992 WL 380267
    , *2 (Dec. 16, 1992). In Shoe, we
    reiterated the standard for reviewing the trial court’s sentence, holding that “a
    - 53 -
    Case No. 16-13-09
    reviewing court ‘cannot invade the province of the trial court by setting aside a
    sentence [imposed within statutory guidelines] if there is no clear showing that the
    trial court abused its discretion.’ ” 
    Id.,
     quoting Bee, 67 Ohio App.2d at 77.
    Phillips does not allege that his sentence was contrary to the statutory guidelines
    and it appears that the record supports the trial court’s analysis of those guidelines.
    Accordingly, we follow our reasoning in Shoe and reject Phillips’ contention that
    he was “trial taxed” merely because he received a harsher sentence than his
    accomplices.
    {¶102} We further note that although Phillips claims that all three offenders
    committed the same crime, the record does not reflect whether Hoffman and Ritter
    were charged with the same offense, being aggravated burglary, a felony of the
    first degree. Hoffman and Ritter’s sentencing transcripts are not before us and we
    will not speculate about the trial court’s reasoning when imposing the six-year
    prison terms on them.      We note, however, that although all three offenders
    participated in the same crime, each of them was involved in a different way.
    According to the testimony found by the jury to be true, Phillips was the only one
    who actually faced the victim and threatened her by brandishing the weapon in
    front of her. He was the only one who did not flee the scene when Mrs. Turnbell
    started screaming. Also, as the trial court noted in its sentencing judgment entry,
    Phillips “was the only one who had a connection, no matter how remote, to this
    - 54 -
    Case No. 16-13-09
    victim.” (R. at 109, J. Entry at 3.) Therefore, his actions had more serious impact
    on Mrs. Turnbell than the actions of Hoffman and Ritter.
    {¶103} Concluding, no facts support Phillips’ contention that he was
    penalized for exercising his right to a jury trial. Because no irregularities appear
    with respect to Phillips’ sentencing, we hold that the trial court did not abuse its
    discretion in sentencing Phillips to eight years in prison and we overrule the sixth
    assignment of error.
    Conclusion
    {¶104} Having reviewed the arguments, the briefs, and the record in this
    case, we find no error prejudicial to Appellant in the particulars assigned and
    argued herein. The judgment of the Common Pleas Court of Wyandot County,
    Ohio is therefore affirmed.
    Judgment Affirmed
    ROGERS and PRESTON, J.J., concur.
    /jlr
    - 55 -