STATE OF OHIO v. DONALD R. BERTRAM, JR.
No. 21CA3950
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
DATE JOURNALIZED:7-15-22
[Cite as State v. Bertram, 2022-Ohio-2488.]
ABELE, J.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
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.
{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
{2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“APPELLANT‘S CONVICTION IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
“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
{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.
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.
{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
{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
{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
{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.
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
{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
{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
“‘[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,
{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,
{24} In the case sub judice,
(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.”
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
{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,
{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
{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
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
{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
{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.
{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
{42}
(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
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
{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
{44} Accordingly, based upon the foregoing reasons, we overrule appellant′s second assignment of error.
{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, 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,
Additionally,
{48} In the case sub judice, when a juror initially indicated she did not agree with the verdict, the trial court directed the jury to retire for further deliberation.
{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),
{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.
{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
- 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) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code, whichever, if any, is relevant; or - 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
{55} We additionally observe that “[n]othing in
{56} In the case sub judice, appellant did not argue that the record fails to support the findings under
{57}
{58} Furthermore, we find nothing in the record to suggest that the trial court′s eight-year prison sentence is contrary to law. Rather,
{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
{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 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 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
{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;
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
{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:
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
{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
{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
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
{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
{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
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.