State v. Bertram

[Cite as State v. Bertram, 2022-Ohio-2488.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case
No. 21CA3950
v. :
DONALD R. BERTRAM, JR., : DECISION AND JUDGMENT
ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Karyn Justice, Portsmouth, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S.
Willis, Scioto County Assistant Prosecuting Attorney,
Portsmouth, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-15-22
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court judgment of conviction and sentence. A jury found Donald
R. Bertram, Jr., defendant below and appellant herein, guilty of
burglary, a second-degree felony, in violation of R.C.
2911.12(A)(2).
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
SCIOTO, 21CA3950 2
“APPELLANT’S CONVICTION IS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE COURT ERRONEOUSLY OVERRULED APPELLANT’S
MOTION FOR ACQUITTAL.”
THIRD ASSIGNMENT OF ERROR:
“THE COURT ERRONEOUSLY OVERRULED APPELLANT’S
MOTIONS FOR A MISTRIAL.”
FOURTH ASSIGNMENT OF ERROR:
“APPELLANT’S SENTENCE IS CONTRARY TO LAW.”
FIFTH ASSIGNMENT OF ERROR:
“APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE
IN HIS REPRESENTATION OF THE APPELLANT.”
SIXTH ASSIGNMENT OF ERROR:
“THE CUMULATIVE EFFECT OF THESE ERRORS
DEPRIVED APPELLANT OF A FAIR TRIAL.”
{¶3} While working outside of his residence during the
afternoon of September 18, 2020, Timothy Huff observed appellant
walk, uninvited, into Huff’s open garage and take a leaf blower
that Huff recently had purchased. A Scioto County Grand Jury
returned an indictment that charged appellant with (1) burglary,
in violation of R.C. 2911.12(A)(2) and 2911.12(D), and (2)
breaking and entering, in violation of R.C. 2911.13(A) and
2911.13(C). Appellant entered not guilty pleas and the state
later dismissed the breaking and entering charge.
SCIOTO, 21CA3950 3
{¶4} On May 17, 2021, the trial court held a jury trial.
During voir dire, one juror (number eight) stated that she twice
had been a burglary victim. The prosecutor asked the juror
whether her experience impacted her ability to be fair and
impartial, and the juror responded “I don’t think [sic].” When
appellant’s trial counsel questioned the juror, he asked her to
explain what happened and she stated that the person broke into
her house and that “it was just traumatizing.” Appellant’s
counsel then asked the juror whether she could “suspend
judgment” until she hears all of the evidence, and she replied
that “[i]t would be hard.” The trial court also questioned the
juror and asked if she could put her past experience “aside and
base [her] decision as to this case on the evidence and the
testimony” presented in this case. The juror responded:
“Honestly, I don’t think so.”
{¶5} The trial court later asked appellant’s counsel if he
had any challenges for cause and counsel mentioned juror number
eight:
I’m wondering about that. It’s – obviously someone
who’s been a victim of burglary twice * * * and I feel
that this would probably be–well, I shouldn’t be saying
that, but as far as cause I – if I want to get rid of
her I think I’d have to use peremptories.
SCIOTO, 21CA3950 4
Appellant’s counsel then asked appellant whether he thought they
should leave the juror on the jury and appellant stated: “I
feel like she knows the–she knows what the charge is so she
would be able to help my case in understanding that it’s not a
burglary.” Counsel responded:
Well, it’s your life. You’re relying on that. The
other side of that is that she could be someone that –
says listen, I’ve got a burglary, I don’t think this guy
was punished enough because burglar’s don’t get caught
enough, if this guy’s a burglar I want him punished.
Appellant then stated that he believed “she’s capable” and
“she’d be a good candidate.” Appellant thus expressed his
desire to leave her on the jury.
{¶6} The state’s first witness, Portsmouth Police Officer
Clayton Nickell, testified that on September 18, 2020 Huff
reported that a white male had taken a Husqvarna leaf blower
from Huff’s garage. Huff had told the person “to stop several
times.” Authorities later identified the white male as
appellant.
{¶7} Huff testified that on September 18, 2020 he was doing
some yard work at his home when he heard a car with a loud
muffler. Huff noticed the driver, appellant, drive slowly by
Huff’s house and look at his house, then they made eye contact.
When Huff entered his house to retrieve his phone, appellant
continued to drive to the end of the street.
SCIOTO, 21CA3950 5
{¶8} At the end of the street, appellant turned around,
drove back up the street and parked “to the side” of Huff’s
house. Huff explained that appellant parked “more in front of
the garage, but behind [Huff’s] truck.” Huff indicated that
appellant would not have been in direct sight of someone who
looked out the front window.
{¶9} After appellant parked, he exited his vehicle and
walked around the front of the car. Huff thought that appellant
may have been approaching him. Huff stated he “was just
shocked” and “didn’t know what was going on.” Huff explained
appellant “had a smile on his * * * face, which threw [Huff]
off.”
{¶10} Appellant entered Huff’s garage, although appellant
did not move at a rapid pace and “that’s what surprised” Huff.
Huff explained that he thought that, if appellant intended to
steal something, “it was going to be * * * real quick.”
Instead, Huff stated that appellant seemed “very cavalier” and
had no “sense of urgency.”
{¶11} Huff further testified that appellant’s presence made
him “nervous,” because Huff “could tell he was under the
influence of something. His * * * behavior was just very off of
a normal person. His eyes were completely glassed over.”
Appellant also “had open lesions all over his body.” Huff said
SCIOTO, 21CA3950 6
he was afraid that appellant might cause him physical harm.
{¶12} Huff further related that, once appellant entered the
garage, appellant picked up the leaf blower and walked toward
his car. Huff told appellant to stop and put down the leaf
blower, but appellant placed the blower in the passenger side of
his car and drove away.
{¶13} After Huff’s testimony and the state rested, appellant
moved for a Crim.R. 29(A) judgment of acquittal. Appellant
argued that the state failed to present sufficient evidence to
establish that appellant trespassed by force, stealth, or
deception. The trial court, however, overruled appellant’s
motion. At that point, the defense rested.
{¶14} After the jury began to deliberate, the jury informed
the trial court that it had reached an impasse. The court,
however, instructed the jury to attempt to continue to
deliberate and to reach a verdict. Later, the jury asked the
court to replay Huff’s testimony. After listening to a replay
of Huff’s testimony, the jury returned to deliberate and
subsequently announced they had reached a verdict.
{¶15} When the trial court polled the jurors, one juror
stated that, although she signed the verdict form, she did not
agree with the verdict and felt as though she “was forced into
pleading guilty [sic].” Appellant’s counsel then asked the
SCIOTO, 21CA3950 7
court to declare a mistrial. Appellant also asked the court to
declare a mistrial based upon counsel’s belief that the jury
observe appellant in shackles. The court, however, responded
that the table “is equipped with modesty panels and skirting”
and the court did not believe that the shackles “would have been
visible to the jury during the limited time they were back in
the courtroom.” Counsel stated that he thought appellant also
“had the belt on and some handcuffs,” but both the court and the
prosecutor stated they did not believe that the jurors observed
the restraints.
{¶16} The trial court then asked defense counsel if he
wanted the court to give the jurors a curative instruction.
Counsel, however, expressed concern that, if the jurors had not,
in fact, noticed the restraints, the instruction would draw
attention to it. Counsel instead again requested the court
grant a mistrial because counsel believed that any instruction
would not be sufficient. The court, however, stated: “I’m not
sure there’s anything to cure.”
{¶17} At that juncture, the trial court brought the jury
into the courtroom and instructed them to continue to
deliberate. Later, the jury returned a guilty verdict.
{¶18} On May 20, 2021, the trial court sentenced appellant.
SCIOTO, 21CA3950 8
The court noted that, at the time of the offense, appellant had
been on post-release control. Consequently, the court (1)
terminated appellant’s post-release control and ordered him to
serve 491 days for the post-release control violation, (2)
sentenced appellant to serve a minimum prison term of eight
years to an “indefinite maximum prison term of up to” 12 years,
and (3) ordered the sentences be served consecutively to one
another. This appeal followed.
I
{¶19} In his first assignment of error, appellant asserts
that his burglary conviction (1) is against the manifest weight
of the evidence, and (2) sufficient evidence does not support
his conviction. In particular, appellant contends that the
evidence fails to show that he used force, stealth, or deception
to enter the victim’s garage.
{¶20} Initially, we observe that “sufficiency” and “manifest
weight” present two distinct legal concepts. Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶
23 (“sufficiency of the evidence is quantitatively and
qualitatively different from the weight of the evidence”); State
v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),
syllabus. A claim of insufficient evidence invokes a due
process concern and raises the question whether the evidence is
SCIOTO, 21CA3950 9
legally sufficient to support the verdict as a matter of law.
Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency
of the evidence, our inquiry focuses primarily upon the adequacy
of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable
doubt. Id. at syllabus. The standard of review is whether,
after viewing the probative evidence and inferences reasonably
drawn therefrom in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. E.g.,
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574
N.E.2d 492 (1991). Furthermore, a reviewing court is not to
assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would
support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook,
J., concurring).
{¶21} Thus, when reviewing a sufficiency of the evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. E.g., State v. Hill, 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio
St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will
not overturn a conviction on a sufficiency-of-the-evidence claim
SCIOTO, 21CA3950 10
unless reasonable minds could not reach the conclusion that the
trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162,
749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,
739 N.E.2d 749 (2001).
{¶22} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St.3d
at 387. “The question to be answered when a manifest weight
issue is raised is whether ‘there is substantial evidence upon
which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’” State v. Leonard,
104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting
State v. Getsy, 84 Ohio St.3d 180, 193–194, 702 N.E.2d 866(1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132(1978), syllabus. A court that is considering a manifest weight
challenge must “‘review the entire record, weigh the evidence
and all reasonable inferences, and consider the credibility of
witnesses.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-
493, 108 N.E.3d 1028, ¶ 208, quoting State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. The reviewing
court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93
SCIOTO, 21CA3950 11
Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th
Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the
trier of fact sees and hears the witnesses and is particularly
competent to decide “whether, and to what extent, to credit the
testimony of particular witnesses,” we must afford substantial
deference to its determinations of credibility.’” Barberton v.
Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20,
quoting State v. Konya, 2d Dist. Montgomery No. 21434, 2006-
Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist. Montgomery No.
16288 (Aug. 22, 1997). As the Eastley court explained:
“‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment must be made in favor of the
judgment and the finding of facts. * * *
If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it
that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict
and judgment.’”
Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 60, at 191–192
(1978). Thus, an appellate court will leave the issues of
weight and credibility of the evidence to the fact finder, as
long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-
1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948,
SCIOTO, 21CA3950 12
2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier
of fact has some factual and rational basis for its
determination of credibility and weight.”).
{¶23} Accordingly, if the prosecution presented substantial
credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements
of the offense had been established, the judgment of conviction
is not against the manifest weight of the evidence. E.g., Eley;
accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,
quoting Black’s Law Dictionary 1594 (6th ed.1990) (judgment not
against the manifest weight of evidence when “‘“the greater
amount of credible evidence”’” supports it). A court may
reverse a judgment of conviction only if it appears that the
fact-finder, when it resolved the conflicts in evidence,
“‘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);
accord McKelton at ¶ 328. A reviewing court should find a
conviction against the manifest weight of the evidence only in
the “‘exceptional case in which the evidence weighs heavily
against the conviction.’” Thompkins, 78 Ohio St.3d at 387,
quoting Martin, 20 Ohio App.3d at 175; accord State v. Clinton,
SCIOTO, 21CA3950 13
153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State
v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
{¶24} In the case sub judice, R.C. 2911.12(A)(2) contains
the essential elements of appellant’s burglary offense:
(A) No person, by force, stealth, or deception,
shall do any of the following:
* * * *
(2) Trespass in an occupied structure or in a
separately secured or separately occupied portion of an
occupied structure that is a permanent or temporary
habitation of any person when any person other than an
accomplice of the offender is present or likely to be
present, with purpose to commit in the habitation any
criminal offense[.]
{¶25} Appellant disputes whether the state presented
sufficient evidence to show that he trespassed by force,
stealth, or deception. “Force” is defined as “any violence,
compulsion, or constraint physically exerted by any means upon
or against a person or thing.” R.C. 2901.01(A)(1). “[A]ny
effort physically exerted” satisfies the element of force.
State v. Johnson, 2d Dist. Montgomery No. 26961, 2017-Ohio-5498,
¶ 21, quoting State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-
175, 947 N.E.2d 1281, ¶ 18 (9th Dist.).
R.C. 2913.01(A) defines “deception” as
knowingly deceiving another or causing another to be
deceived by any false or misleading representation, by
withholding information, by preventing another from
acquiring information, or by any other conduct, act, or
omission that creates, confirms, or perpetuates a false
impression in another, including a false impression as
SCIOTO, 21CA3950 14
to law, value, state of mind, or other objective or
subjective fact.
{¶26} The Ohio Revised Code does not define “stealth.”
Courts have defined the term to mean “‘any secret, sly or
clandestine act to avoid discovery and to gain entrance into or
to remain within a residence of another without permission.’”
State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168 (3d
Dist.1993), quoting State v. Lane, 50 Ohio App.2d 41, 47, 4
O.O.3d 24, 361 N.E.2d 535 (10th Dist.1976).
{¶27} In the case before us, appellant contends that
entering an open garage during daylight while the homeowner
watches does not constitute trespass by force, stealth, or
deception. To support his argument, appellant cites State v.
Pullen, 2nd Dist. Greene No. 91CA33, 1992 WL 142271 (June 25,
1992), and State v. Patton, 2nd Dist. Clark No. 2011 CA 94,
2013-Ohio-961.
{¶28} The state, on the other hand, asserts that appellant
acted with stealth or deception by driving past the victim’s
house, turning around, parking to the side, exiting the vehicle,
and approaching the garage with a cavalier attitude. To support
its position, the state cites State v. Dowell, 166 Ohio App.3d
773, 2006-Ohio-2296, 853 N.E.2d 354, (8th Dist.), and State v.
Biddlecom, 8th Dist. Cuyahoga No. 76087, 2000 WL 354754 (Apr. 6,
SCIOTO, 21CA3950 15
2000).
{¶29} We begin by considering Pullen and Patton. In Pullen,
the defendant was convicted of burglary for stealing a gas can
from an open garage. Before stealing the gas can, the defendant
parked his car in front of the homeowner’s unopened garage door,
exited the vehicle then entered the garage through a different,
opened garage door. The homeowner found the defendant exiting
the garage with a gas can in hand. After his conviction, the
defendant appealed and argued that the evidence failed to
establish that he trespassed by force, stealth, or deception.
The appellate court agreed:
[The defendant] parked his car in front of the
unopened door to [the victim’s] garage, and entered [the
victim’s] garage through the open door, after [the
victim] had entered his home. The entry occurred in
broad daylight. [The victim] did not observe [the
defendant] enter the garage. There is no direct evidence
of a secret, sly, or clandestine act to gain entrance,
and in our judgment there is insufficient circumstantial
evidence of a secret, sly, or clandestine act to gain
entrance.
Id. at *2. The court thus rejected the state’s assertion that
the defendant’s entrance into the garage “was ‘stealthy’ in that
he obviously believed no one was looking, and that he could
enter and leave without being noticed.” Id. at *3. The court
stated that, even if the defendant “believed no one was looking,
this does not establish, even by reasonable inference, that his
SCIOTO, 21CA3950 16
conduct in gaining entrance was secret, sly, or clandestine.”
Id. Instead, the court found it more significant that “the
incident occurred during daylight hours” and that the defendant
“parked his car outside the open garage.” Id. The court thus
reversed the defendant’s burglary conviction.
{¶30} In State v. Patton, 2nd Dist. Clark No. 2011 CA 94,
2013-Ohio-961, the defendant took a lawn mower from an open
garage and the homeowner’s son observed the defendant walk away
from the house with the mower. After the son “felt something
was wrong,” he looked in the garage and found his father’s lawn
mower missing. Id. at ¶ 8. The son then walked toward the
defendant and shouted, “Hey!” Id. The defendant then turned,
looked at the son, loaded the mower into the trunk of a vehicle
and fled.
{¶31} The defendant appealed his burglary conviction and
argued the state did not present sufficient evidence to
establish that he trespassed by force, stealth, or deception.
The appellate court agreed and noted that the open garage during
daylight hours and no one observed the defendant enter the
garage. The court explained:
There is no evidence—direct or circumstantial—that
[the defendant] engaged in any secret, sly, or
clandestine act to gain entrance to the [victims’] open
garage, and nothing suggests that [the defendant]
trespassed on the [victims’] property by force or
SCIOTO, 21CA3950 17
deception.
Id. at ¶ 15. The court thus vacated the defendant’s burglary
conviction.
{¶32} In both Pullen and Patton, the courts concluded that
the absence of evidence to show the manner in which the
defendants entered the garages meant that the state failed to
present sufficient evidence to establish that the defendants
trespassed by force, stealth, or deception. The courts reasoned
that, without evidence to show how the defendants entered the
garage, no evidence existed from which a factfinder could find
that the defendants trespassed by force, stealth, or deception.
{¶33} When, however, the state presents some evidence to
show that a defendant entered or remained in a garage using
force, stealth, or deception, courts have found sufficient
evidence to establish that the defendant trespassed by force,
stealth, or deception. For example, in Dowell the homeowner
drove into his garage and remained in the car while he finished
a phone call. As he sat in the car, the homeowner observed a
vehicle pull into his driveway then back out. When the
homeowner observed the defendant enter the garage and reach for
a battery charger, the homeowner yelled and honked the horn. At
that point, the defendant ducked down on the other side of the
car. The homeowner became concerned that defendant remained in
SCIOTO, 21CA3950 18
the garage so he backed out and continued to yell at the
defendant to leave. When the defendant approached the
homeowner’s vehicle and asked to speak with him, the homeowner
drove away and called the police.
{¶34} After the defendant’s burglary conviction, he argued
on appeal that the state did not present sufficient evidence to
show he trespassed by force, stealth, or deception. The
appellate court, however, disagreed and determined that the
defendant’s conduct in “ducking down was a secret, sly, or
clandestine act and that a rational jury could therefore
conclude that defendant used stealth to remain in the garage
without permission.” Id. at ¶ 20. The court thus affirmed the
defendant’s burglary conviction.
{¶35} In Biddlecom, the defendant argued that the state
failed to present sufficient evidence to establish that he
trespassed by force, stealth, or deception. In that case, the
defendant took a bicycle from an open garage when it was dark
outside and most household members asleep. The appellate court
concluded that entering an open garage “under cover of darkness”
sufficiently established that the defendant trespassed by
stealth. Id. at *5. The court also determined that “[a]
defendant’s demeanor and actions in appearing to have the
permission of the owner to enter a premises would qualify as
SCIOTO, 21CA3950 19
deceptive conduct.” Id. (emphasis sic).
{¶36} In State v. Bolden, 5th Dist. Stark No. 2002-CA-00235,
2002-Ohio-6976, the defendant walked up and down a street,
glanced at garages and carried an item covered with a plastic
bag. The defendant later entered an open garage and the
homeowners observed him walk out of their garage. The defendant
then approached the homeowners’ vehicle, asked for help and also
stated that “he had come to steal things from a garage,” and
explained that someone had paid him to steal items from the
garage. The defendant then returned to the garage and used bolt
cutters to attempt to cut through a lock attached to a
lawnmower.
{¶37} After his burglary conviction, the defendant appealed
and asserted that the state did not present sufficient evidence
to establish that he trespassed by force, stealth, or deception.
The appellate court disagreed, however, and noted that the
evidence showed that the defendant did not simply walk into an
open garage during daylight hours, but instead illustrated that
the defendant had been looking for a garage he could easily
break into and that he had concealed bolt cutters inside a
plastic bag in order to avoid suspicion. The court determined
that this evidence sufficiently demonstrated that the defendant
acted with stealth.
SCIOTO, 21CA3950 20
{¶38} In the case at bar, after our review we believe that
the state presented sufficient evidence that appellant
trespassed into the victim’s garage by stealth or deception. In
contrast to Pullen and Patton, in the case before us there is no
absence of evidence to show the manner in which appellant
entered the garage. Instead, similar to Dowell, Biddlecom, and
Bolden, the state presented evidence to show the manner in which
appellant entered the victim’s garage. Here, the evidence
adduced at trial shows that appellant drove his vehicle past the
victim’s house, turned around, parked off to the side of the
victim’s garage, exited the vehicle and walked into the victim’s
garage. The victim also observed appellant approach and
appellant smiled at the victim. Although the victim stated he
was unsure about appellant’s intentions, appellant’s smile and
cavalier attitude did not lead the victim to believe that
appellant intended to steal from the garage. The victim
explained that he thought appellant would have acted with more
urgency if appellant intended to steal from the garage. Thus,
the victim’s testimony shows that appellant’s attitude and
demeanor deceived the victim into believing that appellant did
not intend to trespass into the garage and steal the leaf
blower. See Biddlecom at *5 (“[a] defendant’s demeanor and
actions in appearing to have the permission of the owner to
SCIOTO, 21CA3950 21
enter a premises would qualify as deceptive conduct.”).
Furthermore, appellant’s conduct could be construed as sly
behavior in an attempt to avoid the impression that he intended
to steal the leaf blower. Therefore, we believe that in the
case sub judice the state presented sufficient evidence to
establish that appellant trespassed by stealth or deception.
{¶39} Furthermore, we believe that the evidence adduced at
trial constitutes competent and credible evidence to establish,
beyond a reasonable doubt, that appellant trespassed by stealth
or deception. We are unable to conclude that appellant’s
conviction is against the manifest weight of the evidence and
the jury lost its way and committed a manifest miscarriage of
justice.
{¶40} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
{¶41} In his second assignment of error, appellant asserts
that the trial court erred by overruling his Crim.R. 29(A)
motion for judgment of acquittal. Appellant claims that the
state failed to present sufficient evidence to support his
burglary conviction and the court should have granted his motion
for judgment of acquittal.
{¶42} Crim.R. 29(A) states as follows:
SCIOTO, 21CA3950 22
(A) Motion for Judgment of Acquittal. The court on
motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry
of a judgment of acquittal of one or more offenses
charged in the indictment, information, or complaint, if
the evidence is insufficient to sustain a conviction of
such offense or offenses.
“‘A motion for acquittal under Crim.R. 29(A) is governed by
the same standard as the one for determining whether a verdict
is supported by sufficient evidence.’” State v. Spaulding, 151
Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 164, quoting
State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d
386, ¶ 37. “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.” Jenks at
paragraph two of the syllabus.
{¶43} As we stated in our discussion of appellant’s first
assignment of error, however, we believe that the state
presented sufficient evidence to support appellant’s burglary
conviction. The trial court, therefore, did not err by
overruling appellant’s Crim.R. 29(A) motion for judgment of
acquittal.
{¶44} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
SCIOTO, 21CA3950 23
III
{¶45} In his third assignment of error, appellant asserts
that the trial court abused its discretion by overruling his
motion for a mistrial (1) after the jury indicated it reached an
impasse, and (2) after the jury allegedly observed appellant’s
leg restraints, stun belt, and handcuffs.
{¶46} “A trial court must declare a mistrial only ‘when the
ends of justice so require and a fair trial is no longer
possible.’” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,
45 N.E.3d 127, ¶ 198, quoting State v. Garner, 74 Ohio St.3d 49,
59, 656 N.E.2d 623 (1995); accord State v. Conway, 108 Ohio
St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 160 (“The granting
of a mistrial is necessary only when a fair trial is no longer
possible”). The decision whether to grant a mistrial lies in
the trial court’s discretion, and a reviewing court will not
reverse the trial court’s decision unless the court abused its
discretion. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190,
813 N.E.2d 637, ¶ 92; State v. Brown, 100 Ohio St.3d 51, 2003-
Ohio-5059, 796 N.E.2d 506, ¶ 42. An abuse of discretion is more
than an error of law or judgment; rather, it implies that the
court’s attitude was unreasonable, arbitrary or unconscionable.
E.g., State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108
N.E.3d 1, ¶ 60 citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
SCIOTO, 21CA3950 24
219, 450 N.E.2d 1140 (1983). An abuse of discretion includes a
situation in which a trial court did not engage in a “‘sound
reasoning process.’” State v. Morris, 132 Ohio St.3d 337, 2012-
Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161, 553 N.E.2d 597 (1990). Moreover, when reviewing for
an abuse of discretion, appellate courts must not substitute
their judgment for that of the trial court. E.g., State v.
Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 187; In
re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181(1991). Moreover, to establish that a trial court abused its
discretion by failing to grant a mistrial, a “defendant must
demonstrate material prejudice.” State v. Adams, 144 Ohio St.3d
429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198.
{¶47} In the case sub judice, after our review we do not
believe that the trial court’s denial of appellant’s motions for
a mistrial constitute an abuse of discretion. We first note
that a trial court need not declare a mistrial when a juror
declares during polling that the verdict is not the juror’s own
verdict. Instead, R.C. 2945.77 requires the jury to deliberate
further if a juror declares that the verdict is not his own.1
1
R.C. 2945.77 provides:
SCIOTO, 21CA3950 25
Additionally, Crim.R. 31(D) allows a court to either direct
further deliberations or discharge the jury, if “there is not
unanimous concurrence” in the verdict.2 The statute and the rule
prevent a court from accepting the verdict only if the jurors do
not agree on the determination of guilt. See State v. Brumback,
109 Ohio App.3d 65, 73, 671 N.E.2d 1064, (9th Dist.1996),
quoting State v. Worthy, 10th Dist. Franklin No. 84AP–390, 1984
WL 5956, *2 (Oct. 25, 1984), quoting Annotation, Juror’s
Reluctant, Equivocal, or Conditional Assent to Verdict, 25 ALR
3d 1149, at 1151-1152 (“if the juror’s ‘”reluctance to assent is
so strong that it is extremely unlikely that he will ever
voluntarily agree,”’ it may discharge the jury and declare a
mistrial.”).
{¶48} In the case sub judice, when a juror initially
indicated she did not agree with the verdict, the trial court
Before the verdict is accepted, the jury may be
polled at the request of either the prosecuting attorney
or the defendant. If one of the jurors upon being polled
declares that said verdict is not his verdict, the jury
must further deliberate upon the case.
2
Crim.R. 31(D) states as follows:
When a verdict is returned and before it is accepted
the jury shall be polled at the request of any party or
upon the courts own motion. If upon the poll there is
not unanimous concurrence, the jury may be directed to
retire for further deliberation or may be discharged.
SCIOTO, 21CA3950 26
directed the jury to retire for further deliberation. Nothing
in the record suggests the trial court’s decision to direct the
jury to further deliberate rather than declaring a mistrial
constitutes an abuse of discretion. State v. Williams, 8th
Dist. Cuyahoga No. 83423, 2004-Ohio-5592, ¶ 29 (the “decision to
order the jury to continue deliberations is within the sound
discretion of the trial court”); e.g., State v. Brown, 100 Ohio
St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 44-46 (court did not
abuse its discretion by directing jurors to further deliberate
and noting that juror had not “expressed further reservation
about her verdict or about further deliberating”); State v.
Pippins, 2020-Ohio-503, 151 N.E.3d 1150, ¶ 26 (10th Dist.);
State v. Edge, 8th Dist. Cuyahoga No. 80919, 2003-Ohio-424, ¶
20-21; State v. Green, 67 Ohio App.3d 72, 77–78, 585 N.E.2d 990(8th Dist.1990).
{¶49} Appellant next argues that the trial court abused its
discretion when it overruled his request for a mistrial after
the jury allegedly observed him in restraints. “‘In cases where
a defendant is inadvertently witnessed by members of the jury in
handcuffs or prison garb, there is a heavy burden on the
defendant to justify a mistrial.’” State v. Walls, 6th Dist.
Erie No. E-19-040, 2020-Ohio-5446, ¶ 12, quoting State v. James,
6th Dist. Lucas No. L-86-171, 1988 WL 38861 (Apr. 22, 1988),
SCIOTO, 21CA3950 27
citing Dupont v. Hall, 555 F.2d 15 (1st Cir. 1977). “When a
jury’s view of the defendant in restraints is ‘brief,
inadvertent, and outside the courtroom,’ there is but a slight
risk of prejudice.” State v. Daboni, 4th Dist. Meigs No. 18CA3,
2018-Ohio-4155, ¶ 77, quoting State v. Kidder, 32 Ohio St.3d
279, 286, 513 N.E.2d 311 (1987); see State v. Halsell, 9th Dist.
Summit No. 24464, 2009-Ohio-4166, ¶ 9 (“Even assuming that
Defendant’s handcuffs were visible during the break in
proceedings and that jurors were in the immediate area, the
brief and inadvertent encounter outside the courtroom caused
minimal risk of prejudice to Defendant.”); State v. Flowers, 9th
Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 37 (finding that trial
court did not abuse its discretion by denying motion for
mistrial when two jurors’ view of the defendant in handcuffs
“was extremely brief, inadvertent, and outside the courtroom”).
“The ultimate question is the degree of prejudice, if any, which
such brief exposure caused.” State v. Chitwood, 83 Ohio App.3d
443, 448, 615 N.E.2d 257 (1st Dist.1992).
{¶50} In the case sub judice, after our review of the record
we do not believe the record affirmatively shows that any jurors
observed appellant in restraints. The trial court noted that
counsel table had modesty panels and that skirting and the court
did not believe that any juror observed appellant in restraints.
SCIOTO, 21CA3950 28
Consequently, because the record does not indicate that any
juror actually observed appellant in restraints, appellant
cannot demonstrate any prejudicial error. See State v. Bonan,
3rd Dist. Crawford No. 3-92-33, 1992 WL 389999, *1 (Dec. 24,
1992) (no prejudicial error when record failed to indicate “that
any member of the jury ever observed [the defendant] wearing
restraints”); State v. Hastings, 4th Dist. Ross No. 1301, 1986
WL 14899, *3 (Dec. 23, 1986) (defendant failed to establish
prejudice when defendant “uncertain whether or not the jurors
saw him through an open door being unshackled in a room adjacent
to the courtroom”). Therefore, the trial court did not abuse
its discretion by overruling appellant’s motion for a mistrial.
{¶51} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error.
IV
{¶52} In his fourth assignment of error, appellant asserts
that the trial court imposed a sentence contrary to law. In
particular, appellant claims that his sentence “is not
commensurate with the seriousness of the conduct constituting
the offense” because his conduct does not justify eight years in
prison and that the trial court did not state sufficient reasons
to support its decision to impose the maximum sentence.
{¶53} When reviewing felony sentences, appellate courts
SCIOTO, 21CA3950 29
apply the standard of review outlined in R.C. 2953.08(G)(2).
State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶
12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-
Ohio-1277, ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate
court’s standard for review is not whether the sentencing court
abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies
that an appellate court may increase, reduce, modify, or vacate
and remand a challenged felony sentence if the court clearly and
convincingly finds either:
(a) That the record does not support the sentencing
court’s findings under division (B) or (D) of section
2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶54} A defendant bears the burden to establish, by clear
and convincing evidence, (1) that a sentence is either contrary
to law or (2) that the record does not support the specified
findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C.
2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 2929.20(I). State v.
Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48;
State v. Shankland, 4th Dist. Washington Nos. 18CA11 and 18CA12,
2019-Ohio-404, ¶ 20. “[C]lear and convincing evidence is that
measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such
SCIOTO, 21CA3950 30
certainty as is required ‘beyond a reasonable doubt’ in criminal
cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
{¶55} We additionally observe that “[n]othing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh
the evidence in the record and substitute its judgment for that
of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.
Furthermore, “an appellate court’s determination that the record
does not support a sentence does not equate to a determination
that the sentence is ‘otherwise contrary to law’ as that term is
used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Consequently,
appellate courts cannot review a felony sentence when “the
appellant’s sole contention is that the trial court improperly
considered the factors of R.C. 2929.11 or 2929.12 when
fashioning that sentence.” State v. Stenson, 6th Dist. Lucas
No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; accord
State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-
985, ¶ 13 (“In light of Jones, assigning error to the trial
court’s imposition of sentence as contrary to law based solely
SCIOTO, 21CA3950 31
on its consideration of R.C. 2929.11 and 2929.12 is no longer
grounds for this court to find reversible error.”); State v.
Loy, 4th Dist. Washington No. 19CA21, 2021-Ohio-403, ¶ 30. We
also observe that “neither R.C. 2929.11 nor 2929.12 requires a
trial court to make any specific factual findings on the
record.” Jones at ¶ 20.
{¶56} In the case sub judice, appellant did not argue that
the record fails to support the findings under R.C. 2929.13(B),
R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), 2929.14(C)(4), or R.C.
2929.20(I). Instead, appellant asserts that his “sentence is
not commensurate with the seriousness of the conduct
constituting the offense” and that the record does not support
the court’s findings under R.C. 2929.11. Appellant thus claims
that his sentence is “contrary to law.”
{¶57} R.C. 2953.02(G)(2) does not, however, allow this court
to independently review the record to determine whether the
trial court chose an appropriate sentence based on the R.C.
2929.11 factors. See Jones, supra; State v. Hughes, 4th Dist.
Adams No. 21CA1127, 2021-Ohio-3127, ¶ 41 (“R.C. 2953.08(G)(2)
does not give appellate courts broad authority to review
sentences to determine if they are supported by the record”).
Therefore, we are unable to consider whether we believe the
record supports the trial court’s decision to impose an eight-
SCIOTO, 21CA3950 32
year prison term.
{¶58} Furthermore, we find nothing in the record to suggest
that the trial court’s eight-year prison sentence is contrary to
law. Rather, R.C. 2929.14(A)(2)(a) authorizes trial courts to
impose an eight-year prison sentence for a second-degree felony
such as burglary. Appellant did not point to any other statute,
law, or rule that renders his sentence contrary to law. See
Jones at ¶ 34 (noting that when the legislature enacted R.C.
2953.08, “legal dictionaries defined ‘contrary to law’ as ‘in
violation of statute or legal regulations at a given time,’
e.g., Black’s Law Dictionary 328 (6th Ed.1990)”).
{¶59} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error.
V
{¶60} In his fifth assignment of error, appellant asserts
that his trial counsel did not provide effective assistance of
counsel. In particular, appellant contends that trial counsel:
(1) failed to challenge a juror who stated that she had twice
been a burglary victim; (2) failed to present evidence; (3) made
statements adverse to appellant; and (4) failed to request a
curative instruction after the jury allegedly observed
appellant’s restraints.
A
SCIOTO, 21CA3950 33
{¶61} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provides
that defendants in all criminal proceedings shall have the
assistance of counsel for their defense. The United States
Supreme Court has generally interpreted this provision to mean a
criminal defendant is entitled to the “reasonably effective
assistance” of counsel. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama,
571 U.S. 263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (the
Sixth Amendment right to counsel means “that defendants are
entitled to be represented by an attorney who meets at least a
minimal standard of competence”).
{¶62} To establish constitutionally ineffective assistance
of counsel, a defendant must show that (1) his counsel’s
performance was deficient and (2) the deficient performance
prejudiced the defense and deprived the defendant of a fair
trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154
Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶
85. “Failure to establish either element is fatal to the
claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-
Ohio-968, ¶ 14. Therefore, if one element is dispositive, a
court need not analyze both. State v. Madrigal, 87 Ohio St.3d
SCIOTO, 21CA3950 34
378, 389, 721 N.E.2d 52 (2000) (a defendant’s failure to satisfy
one of the ineffective-assistance-of-counsel elements “negates a
court’s need to consider the other”).
{¶63} The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.’” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at
688; accord Hinton, 571 U.S. at 273. Prevailing professional
norms dictate that “a lawyer must have ‘full authority to manage
the conduct of the trial.’” State v. Pasqualone, 121 Ohio St.3d
186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v.
Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798(1988).
{¶64} Furthermore, “‘[i]n any case presenting an
ineffectiveness claim, “the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.”’” Hinton, 571 U.S. at 273, quoting Strickland,
466 U.S. at 688. Accordingly, “[i]n order to show deficient
performance, the defendant must prove that counsel’s performance
fell below an objective level of reasonable representation.”
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d
SCIOTO, 21CA3950 35
810, ¶ 95 (citations omitted).
{¶65} Moreover, when considering whether trial counsel’s
representation amounts to deficient performance, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Thus, “the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id.Additionally, “[a] properly licensed attorney is presumed to
execute his duties in an ethical and competent manner.” State
v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10,
citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128(1985). Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel’s errors were “so
serious” that counsel failed to function “as the ‘counsel’
guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S.
at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153,
156, 524 N.E.2d 476 (1988).
{¶66} To establish prejudice, a defendant must demonstrate
that a reasonable probability exists that “‘but for counsel’s
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
SCIOTO, 21CA3950 36
undermine the outcome.’” Hinton, 571 U.S. at 275, quoting
Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio
St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph
three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d
378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component
requires a “but for” analysis). “‘[T]he question is whether
there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.’”
Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.
Furthermore, courts ordinarily may not simply presume the
existence of prejudice but, instead, must require a defendant to
affirmatively establish prejudice. State v. Clark, 4th Dist.
Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th
Dist. Ross No. 01CA2592 (Apr. 2, 2002); see generally Roe v.
Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d
985 (2008) (prejudice may be presumed in limited contexts, none
of which are relevant here).
{¶67} Additionally, we have repeatedly recognized that
speculation is insufficient to establish the prejudice component
of an ineffective assistance of counsel claim. E.g., State v.
Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34; State
v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22;
SCIOTO, 21CA3950 37
State v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890,
¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio-
1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-
Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (purely speculative
argument cannot serve as the basis for ineffectiveness claim).
B
{¶68} Appellant argues that trial counsel failed to
challenge a juror when the juror stated she twice had been a
victim of burglary and that she was unsure whether she could put
her experience aside and consider only the evidence presented in
the case.
{¶69} Generally, trial counsel’s decision regarding juror
selection constitutes a matter of trial strategy. State v.
Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 64.
“Few decisions at trial are as subjective or prone
to individual attorney strategy as juror voir dire,
where decisions are often made on the basis of intangible
factors.” Miller v. Francis (C.A.6, 2001), 269 F.3d
609, 620. “The selection of a jury is inevitably a call
upon experience and intuition. The trial lawyer must
draw upon his own insights and empathetic abilities.
Written records give us only shadows for measuring the
quality of such efforts. * * * [T]he selection process
is more an art than a science, and more about people
than about rules.” Romero v. Lynaugh (C.A.5, 1989), 884
F.2d 871, 878.
Id. For these reasons, appellate courts ordinarily will “not
SCIOTO, 21CA3950 38
second-guess trial strategy decisions such as those made by
counsel during voir dire.” State v. Hall, 11th Dist. Lake Nos.
2019-L-027 and 031, 2019-Ohio-4000, ¶ 28; accord Mundt at ¶ 63,
quoting State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932(1998) (courts “have consistently declined to ‘second-guess
trial strategy decisions’ or impose ‘hindsight views about how
current counsel might have voir dired the jury differently’”).
Additionally, “because the use of peremptory challenges is
inherently subjective and intuitive, an appellate record will
rarely disclose reversible incompetence in this process.” Mundt
at ¶ 83.
{¶70} In the case sub judice, appellant’s counsel considered
whether to challenge the juror and counsel explained his
process:
I’m wondering about that. It’s–obviously someone
who’s been a victim of burglary twice–he’s got justice
though and I feel that this would probably be–well, I
shouldn’t be saying that, but as far as cause I–if I
want to get rid of her I think I’d have to use
peremptories.
Counsel then asked appellant if appellant thought that counsel
should leave the juror on the jury. Appellant stated: “I feel
like she knows the – she knows what the charge is so she would
be able to help my case in understanding that it’s not a
burglary.” Counsel responded:
SCIOTO, 21CA3950 39
Well, it’s your life. You’re relying on that.
The other side of that is that she could be someone
that–say listen, I’ve got a burglary, I don’t think
this guy was punished enough because burglar’s don’t
get caught enough, if this guy’s a burglar I want him
punished.
Appellant responded that he believed “she’s capable” and that
“she’d be a good candidate.” Appellant then stated his desire
to leave her on the jury.
{¶71} In view of the fact that appellant explicitly opted to
leave the juror on the jury, we are unable to conclude that
trial counsel, abiding by appellant’s request, acted
unreasonably. Rather than choosing to remove the juror from the
panel, appellant specifically informed trial counsel that
appellant thought that the juror would “be a good candidate” and
stated that counsel should not remove the juror. Thus, in view
of this information appellant invited any error that may have
possibly occurred. The invited-error doctrine precludes a
litigant from “‘tak[ing] advantage of an error which [the
litigant] invited or induced.’” State v. Ford, 158 Ohio St.3d
139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 279, quoting Hal Artz
Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div.,
28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the
syllabus. The doctrine generally applies “‘when a party has
asked the court to take some action later claimed to be
SCIOTO, 21CA3950 40
erroneous, or affirmatively consented to a procedure the trial
judge proposed.’” Id., quoting State v. Campbell, 90 Ohio St.3d
320, 324, 738 N.E.2d 1178 (2000). In the criminal context, the
doctrine prevents a defendant from making “‘an affirmative * * *
decision at trial and then complain[ing] on appeal that the
result of that decision constitutes reversible error.’” State
v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7,
quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th
Cir. 2003); accord State v. Brunner, 4th Dist. Scioto No.
18CA3848, 2019-Ohio-3410, ¶ 15.
{¶72} Therefore, after our review of the record we do not
believe that appellant established that trial counsel, when
counsel acted in accordance with appellant’s wishes, provided
ineffective legal assistance.
C
{¶73} Appellant next claims that trial counsel’s failure to
present evidence constitutes ineffective assistance of counsel.
In particular, appellant asserts that he advised the court
during the final pretrial that appellant had evidence to present
in his defense, but that his counsel failed to present any
evidence whatsoever during trial.
{¶74} Our review of the transcript reveals that appellant
did claim to have evidence to support a defense, and that the
SCIOTO, 21CA3950 41
trial court explicitly informed appellant that he would need to
gather and provide evidence to defense counsel. However,
nothing in the record shows that before trial, appellant
gathered any evidence or provided evidence to counsel.
{¶75} Therefore, we are unable to conclude that trial
counsel acted unreasonably by failing to present evidence that
appellant claimed to possess, but did not provide to counsel.
D
{¶76} Appellant next asserts that trial counsel’s adverse
statements constitute ineffective performance. Appellant
complains that trial counsel made a statement during a bench
conference that appellant was “mad that I didn’t ask a thousand
irrelevant questions.” Appellant asserts that counsel made
another disparaging remark when he cross-examined the victim and
asked “Well you’re in a pretty safe area to leave [the garage
door] open, wouldn’t you say?” Counsel then offered his remark
that, “It turned out after this case not so.” Appellant
contends that counsel’s statements are inherently prejudicial.
{¶77} After our review, we do not agree with appellant that
trial counsel’s above-referenced comments constitute ineffective
assistance of counsel. Even if we may agree that the statements
could be viewed as professionally unreasonable, appellant cannot
demonstrate that the statements affected the outcome of the
SCIOTO, 21CA3950 42
proceedings. Nothing suggests that the jury returned a guilty
verdict based upon counsel’s remark to the victim about the area
being safe or unsafe. Moreover, the other comment occurred
during a bench conference and appellant did not establish that
the jury heard the comment, or that the comment had any effect
on the outcome of the proceedings.
E
{¶78} Appellant also asserts that trial counsel’s failure to
ask the court to give the jury a curative instruction after the
jury allegedly observed appellant in restraints constitutes
ineffective assistance of counsel. We do not agree.
{¶79} After trial counsel raised the concern that the jurors
observed appellant in restraints, the trial court asked counsel
if he wanted the court to give the jury a curative instruction.
Counsel, however, expressed concern that if the jurors had not
noticed the restraints, as the court and prosecutor believed,
then an instruction may draw attention to the restraints.
Counsel thus stated that any curative instruction would not be
sufficient (and he would rather the court grant a mistrial).
{¶80} After our review of the record, we believe that
counsel made a strategic decision not to request a curative
instruction. If the jury did not actually notice the
restraints, a curative instruction could draw unnecessary
SCIOTO, 21CA3950 43
attention to the restraints. Therefore, counsel could have
reasonably decided that better strategy dictated foregoing a
curative instruction rather than unnecessarily drawing attention
to the restraints.
{¶81} Furthermore, even if counsel acted unreasonably by
failing to ask the court to issue a curative instruction,
appellant cannot establish that counsel’s decision affected the
outcome of the proceedings. As we noted earlier in our
decision, the record does not clearly reveal that the jury
actually observed appellant in restraints. The trial court
noted that the table had a modesty panel and the court did not
believe the jury observed appellant in restraints. In light of
this uncertainty, appellant cannot establish prejudice. See
Hastings, supra, at *3 (defendant failed to establish prejudice
when defendant “uncertain whether or not the jurors saw him
through an open door being unshackled in a room adjacent to the
courtroom”). Therefore, based upon the foregoing reasons, we do
not believe that appellant’s trial counsel failed to provide
appellant effective assistance of counsel.
{¶82} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fifth assignment of error.
VI
{¶83} In his sixth assignment of error, appellant asserts
SCIOTO, 21CA3950 44
that the cumulative effect of the errors that occurred during
the trial court proceedings deprived him of his right to a fair
trial.
{¶84} The cumulative error doctrine states that a conviction
will be reversed if the cumulative effect of all the errors in a
trial deprive a defendant of the constitutional right to a fair
trial, even though each alleged instance of error may not
individually constitute cause for reversal. State v. Powell,
132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223,
citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256(1987), paragraph two of the syllabus.
{¶85} In the case sub judice, however, we have not found
merit to appellant’s assignments of error. Thus, the cumulative
error doctrine does not apply under these circumstances. State
v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶
143, citing Powell at ¶ 223. Therefore, appellant’s sixth
assignment of error is without merit.
{¶86} Accordingly, based upon the foregoing reasons, we
overrule appellant’s sixth assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
SCIOTO, 21CA3950 45
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Scioto County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
_____________________________
BY: Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.