State v. Pennington, 2011 Ohio 4445

Pennington was convicted of aggravated robbery in Montgomery County, Ohio for involvement in an attempted catalytic converter theft from Keith Kelly’s vehicle.
On Jan. 24, 2010, Kelly observed two men under his wife’s car; Chaffin brandished a knife and Pennington ran, then Pennington returned and charged Kelly.
Kelly fired a single shot, intentionally missing as Pennington approached within about ten feet; Pennington fled across the parking lot.
Detective Wessling arranged a six-photo array; Kelly identified Pennington from the array; Chaffin was identified in a later array.
Pennington and Chaffin were tried together; a pretrial motion claimed ineffective counsel; the court found counsel had prepared.
Pennington was found guilty, sentenced to five years; he appealed asserting manifest weight and ineffective assistance claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the conviction against the manifest weight of the evidence?	State contends evidence supports conviction; any conflict favors the verdict.	Pennington asserts the evidence is insufficiently persuasive to uphold the verdict.	Not against the manifest weight; evidence supports the conviction.
Did Pennington receive ineffective assistance of counsel?	State presumes adequate performance; claims of prejudice fail.	Pennington claims multiple deficient acts by counsel prejudiced the defense.	No ineffective assistance; claims lacked reversible prejudice.
Was severance or Bruton error a permissible basis to challenge Joinder?	Bruton error could require severance; co‑defendant statements taint Pennington’s trial.	Statements about Chaffin did not implicate Pennington; Bruton not applicable.	Bruton not applicable; no error from lack of severance.
Were jury-deliberation irregularities grounds for mistrial or reversal?	Deliberation irregularities could require mistrial under R.C. 2945.79.	Counsel was deficient for not moving for a mistrial.	Courts’ procedures safeguarded rights; no basis for mistrial or reversal.

State v. Wilson, 113 Ohio St.3d 382 (2007-Ohio-2202) (weight of the evidence governs credibility after sufficiency analysis)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (thirteenth juror standard for manifest weight)
Tibbs v. Florida, 457 U.S. 31 (1982) (standard for comparing weight of evidence)
State v. McGhee, 2010-Ohio-977 (Montgomery App. No. 23226) (circumstances may support inference of culpability)
State v. Lytle, 48 Ohio St.2d 391 (1976) (two-step test for ineffective assistance)
State v. Marshall, 191 Ohio App.3d 444 (2010-Ohio-5160) (deficient performance must be serious to fail Sixth Amendment)
State v. Cook, 65 Ohio St.3d 516 (1992) (defense counsel duties; prejudice required)
State v. Moritz, 63 Ohio St.2d 150 (1980) (cross-examination rights and confrontation in joint trials)
State v. Hessler, 90 Ohio St.3d 108 (2000) (jury polling after deliberations safeguards rights)
State v. Reid, Montgomery App. No. 19352 (2003-Ohio-4087) (non-testifying co-defendant statements not incriminating here)
Bruton v. United States, 391 U.S. 123 (1968) (inadmissible statements against co-defendant in joint trials)