{¶ 2} The charge herein stems from a burglary that occurred on May 7, 2006, at 186 East 16th Avenue, Columbus, Ohio. The following facts were adduced at trial. Derek Haggerty lived at 186 E. 16th Avenue (hereafter "E. 16th"). At 2 a.m. on May 7, 2006, Mr. Haggerty's roommates were out of town, and he was lying in his bedroom watching television when he heard "footsteps" and "a lot of walking back and forth." (Tr. at 22.) After hearing the back door to the house open from the inside, Mr. Haggerty looked outside and saw a man exiting the house through the back door carrying a white bag.
{¶ 3} Mr. Haggerty called 9-1-1, gave a description of the man he saw, and told the dispatcher to tell the police to go to the back of the house. While on the phone with the dispatcher, Mr. Haggerty told her the suspect was walking towards 17th Avenue, wearing dark clothing, carrying a white bag and wearing a white hat. Mr. Haggerty then saw a police officer arrive and begin looking for the suspect with a flashlight. Mr. Haggerty went outside, losing sight of the suspect for approximately "20 seconds." Id. at 31. Mr. Haggerty told the police officer the suspect went towards 17th Avenue, whereupon Mr. Haggerty and the officer observed a person in front of a dumpster wearing "dark clothing and a light colored hat, a whitish colored hat." Id. at 32. The hat was described by Mr. Haggerty as "a toboggan type cap." Id. at 39. When asked if the person at the dumpster matched the description of the person he saw going into and out of his residence, Mr. Haggerty replied "absolutely." Id. Mr. Haggerty identified the property in *3 the bag as belonging to him and his roommates.1 Mr. Haggerty also noted after the burglary that a window to the residence was opened, though it was closed when he went to bed. Mr. Haggerty testified that no one gave this individual permission to be in the house that night or to take the property.
{¶ 4} Sergeant Steve Shinaver of the Columbus Police Department testified he was dispatched to a burglary call at E. 16th Avenue when he was seven or eight blocks from the scene. Upon arriving at the scene, Sgt. Shinaver saw appellant standing in front of a dumpster near E. 16th matching the description given by the 9-1-1 dispatcher, i.e., a black male wearing a white hat, dark clothing, and holding a white bag. When appellant saw Sgt. Shinaver, appellant threw the bag on the ground. When he approached appellant, Sgt. Shinaver observed a white bag containing miscellaneous items, such as CDs and DVDs, and a dark green blanket with video games and food items wrapped inside it. Sgt. Shinaver apprehended appellant for identification purposes. Thereafter, the victim, Mr. Haggerty, identified appellant. Mr. Haggerty also identified the items in the bag and the blanket as belonging to him and his roommates. A light gray cap with the letter "P" on the front and black trim was taken from appellant. Sgt. Shinaver also testified appellant was wearing a "dark green sweater or sweatshirt and a darker colored shirt underneath." Id. at 83.
{¶ 5} Detective Ronald Love of the Columbus Police Department testified that appellant did not live near E. 16th at the time of the burglary. Based on the victim's identification of appellant, Det. Love explained he did not find it necessary to attempt to *4 obtain fingerprints. Also, Det. Love explained he attempted to get the clothing appellant was wearing the night of his arrest, but was informed by the Franklin County jail that the clothing appellant had been wearing that night had been traded for clothing appellant nеeded for court. Therefore, the clothing appellant was wearing the night of his arrest was not available as evidence.
{¶ 6} On May 16, 2006, appellant was indicted on one count of burglary and one count of theft. The matter proceeded to a jury trial on August 2, 2006. A nolle prosequi was entered as to the theft count. At the conclusion of the trial, the jury found appellant guilty of burglary. A pre-sentence investigation was ordered, and on August 17, 2006, appellant was sentenced to a seven-year determinate sentence.
{¶ 7} Through counsel, appellant asserts one assignment of error for our review:
THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE APPELLANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 8} In his pro se supplemental brief, appellant asserts the following six assignments of error for our review:
ASSIGNMENT OF ERROR NUMBER ONE
THE APPELLANT CONTENDS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR (1) TRIAL COUNSEL'S FAILURE TO FILE PRE-TRIAL AND POST-TRIAL MOTION. A MOTION TO SUPPRESS THE OUT OF COURT AND IN COURT IDENTIFICATIONS OF THE ALLEGED VICTIM AND, THE TESTIMONY RESULTING THEREFROM. (2) WHEN COUNSEL ALLOWED AND CONTRIBUTED TO PERJURED TESTIMONY GIVEN BY STATE WITNESSES. (3) FOR FAILING TO MAKE TIMELY OBJECTIONS TO IMPROPER AND MISLEADING STATEMENTS BY THE PROSECUTOR DURING TRIAL *5 AND CLOSING ARGUMENTS. (4) WHEN COUNSEL AIDED IN EXCLUDING EXCULPATORY EVIDENCE FAVORABLE TO APPELLANT FROM BEING PLACED INTO EVIDENCE. (5) FOR NOT REQUESTING THE LESSER-INCLUDED DEGREE OF BURGLARY INSTRUCTIONS BE GIVEN TO THE JURY AFTER THE STATE NOLLE PROSEQUIED THE THEFT ELEMENT. (6) FOR FAILING TO REQUEST AN EYEWITNESS EXPERT ON BEHALF OF THE DEFENSE. (7) FOR NOT FILING AN AFFIDAVIT OF INDIGENCY ON BEHALF OF THE APPELLANT BEFORE THE IMPOSITION OF COURT COST BEING IMPOSED.
ASSIGNMENT OF ERROR NUMBER TWO
THE APPELLANT CONTENDS THAT PROSECUTORIAL MISCONDUCT DENIED HIM OF HIS 5TH, 6TH, 13TH, AND 14TH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTIONS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW WHEN (1) THE PROSECUTOR KNOWINGLY USED FALSE MATERIAL EVIDENCE. (2) THE PROSECUTOR KNOWINGLY ALLOWED AND CONTRIBUTED TO PERJURED TESTIMONY BY STATE WITNESSES. (3) THE PROSECUTOR REPEATEDLY MADE IMPROPER AND MISLEADING STATEMENTS TO THE JURY DURING TRIAL AND CLOSING ARGUMENTS. (4) THE PROSECUTOR KNOWINGLY CONCEALED FAVORABLE EVIDENCE FROM THE DEFENSE IN ITS DISCOVERY AND FROM THE JURY DELIBERATIONS AND FAILED TO PRESERVE EXCULPATORY EVIDENCE.
ASSIGNMENT OF ERROR NUMBER THREE
THE APPELLANT CONTENDS THAT THIS CONVICTION ON THE CHARGE OF BURGLARY UNDER OHIO'S STATUTE 2911.12(A)(2) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE VIOLATING THE 14TH AMENDMENT RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS TO DUE PROCESS.
ASSIGNMENT OF ERROR NUMBER FOUR
THE APPELLANT CONTENDS THAT THE TRIAL COURT ABUSES ITS DISCRETION AND, COMMITS PLAIN ERROR IN FIVE INSTANCES. (1) WHEN IT RULES AGAINST THE *6 APPELLANT'S CRIM. RULE 29 MOTION AT THE CONCLUSION OF THE STATE'S CASE. (2) WHEN THE TRIAL COURT FAILS TO MAKE AN OFFICIAL RULING ON THE APPELLANT'S OBJECTION TO THE PROSECUTOR AND DEFENSE COUNSEL'S DELIBERATE EXCLUSION OF EXCULPATORY EVIDENCE IN THE FORM OF THE POLICE REPORT. (3) FOR NOT INCUDING IN ITS * * * INSTRUCTIONS TO THE JURY AFTER THE STATE NOLLIED THE THEFT OFFENSE, WHICH WAS THE ESSENTIAL ELEMENT AND UNDERLINING OFFENSE OF THE BURGLARY. (4) FOR NOT MAKING AN OFFICIAL INQUIRY INTO THE APPELLANT'S ALLEGATIONS THAT DEFENSE COUNSEL AND PROSECUTOR HAD CONSPIRED TO PRODUCE THE WRONGFUL CONVICTION OF THE APPELLANT BY SHARING INFORMATION AND, COVERING UP THE CONSPIRACY. (5) WHEN THE TRIAL COURT ALLOWED THE STATE TO PROCEED TO PROSECUTE APPELLANT EVEN AFTER THE ALLEGED VICTIM FAILED TO MAKE AN IN-COURT IDENTIFICATION IN VIOLATION OF EVIDENCE RULE 901.
ASSIGNMENT OF ERROR NUMBER FIVE
THE APPELLANT CONTENDS THAT HIS CONVICTION ON THE CHARGE OF BURGLARY UNDER SECTION
2911.12 (A)(2) WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE WHICH VIOLATED APPELLANT'S 13TH AND 14TH AMENDMENT RIGHTS UNDER THE OHIO AND U.S. CONSTITUTIONS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW.ASSIGNMENT OF ERROR NUMBER SIX
THE APPELLANT CONTENDS THAT THE STATE OF OHIO LACKED SUBJECT MATTER JURISDICTION TO PLACE APPELLANT ON TRIAL IN VOLATION OF CONST. AMEND 6, CONSTITUTION ARTICLE 1 § 10 RULE OF CRIM PROC. RULE 3.
{¶ 9} During the pendency of his direct appeal, appellant filed on November 30, 2006, a рetition for postconviction relief pursuant to R.C.
ASSIGNMENT OF ERROR NUMBER ONE
THE APPELLANT CONTENDS THAT THE TRIAL COURT'S DISMISSAL OF HIS POST CONVICTION RELIEF MOTION WAS AN ABSOLUTE ABUSE OF DISCRETION AND THUS VIOLATED THE APPELLANT'S 14TH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW, AND WHEN TRIAL COURT DELIBERATELY IGNORE PETITIONER'S ALLEGATIONS AND PROOF THAT THE PROSECUTOR KNOWINGLY USED FALSE EVIDENCE AND TESTIMONY AND DENIES PETITION WITHOUT A COMPLETE TRANSCRIPT.
ASSIGNMENT OF ERROR NUMBER TWO
THE APPELLANT CONTENDS THAT THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTION FOR SUMMARY JUDGMENT THUS VIOLATING THE APPELLANT'S 1ST AND 14TH AMENDMENT RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW AND, THE RIGHTS TO BE HEARD BEFORE AN UNBIAS COURT.
ASSIGNMENT OF ERROR NUMBER THREE
THE APPELLANT CONTENDS THAT THE TRIAL COURT COMMITTED PLAIN AND PREJUDICIAL ERROR IN NOT GRANTING THE APPELLANT'S MOTION FOR DEFAULT JUDGMENT UNDER CIVIL RULE 55 THUS VIOLATING THE APPELLANT'S 14TH AMENDMENT RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW. . . . . AND ASSIGNMENT OF ERROR NUMBER FOUR IS INCORPORATED INTO ASSIGNMENT OF ERROR NUMBER THREE WHICH IS THE APPELLANT CONTENDS THAT PROSECUTORIAL MISCONDUCT DENIED HIM HIS 5TH, 6TH AND 14TH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTIONS [sic] AND THAT SUCH ACTIONS WERE AN INFRINGEMENT OF SUCH NATURE THAT THEY WARRANTED POSTCONVICTION RELIEF *8 AND WOULD CAUSE THE APPELLANT'S SENTENCE AND CONVICTION TO BE VOID OR VOIDABLE.
{¶ 10} For ease of discussion, we will first consider the seven assignments of error raised in appellant's direct appeal.
{¶ 11} In his assignment of error made through counsel, and his third and fifth assignments of error made pro se, appellant challenges both the sufficiency and the weight of the evidence pertaining to his conviction.
{¶ 12} The Supreme Court of Ohio described the role of an appellate court presented with a sufficiency-of-the-evidence argument in State v.Jenks (1991),
An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979],
, 443 U.S. 307 , 99 S.Ct. 2781 61 L.Ed.2d 560 , followed.)
{¶ 13} Whether the evidence is legally sufficient is a question of law, not fact. State v. Thompkins (1997),
{¶ 14} A manifest weight argument is evaluated under a different standard. "The weight of the evidence concerns the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other." State v. Brindley, Franklin App. No. 01AP-926,
{¶ 15} A defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial.State v. Raver, Franklin App. No. 02AP-604,
{¶ 16} While this case turns on circumstantial evidence, the Supreme Court of Ohio has held that "[a] conviction can be sustained based on circumstantial evidence alone." State v. Franklin (1991),
{¶ 17} Appellant was convicted of burglary in violation of R.C.
(A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the *11 structure or in the separately secured or separately occupied portion of the structure any criminal offense;
(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;
(3) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense;
(4) Trespass in 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.
{¶ 18} Appellant argues there is no physical evidence linking him to the crime at issue, and this is merely a case of mistaken identity. However, we find, if beliеved, the testimony and circumstantial evidence presented here supports each element of the offense for which appellant was found guilty beyond a reasonable doubt.
{¶ 19} As described above, the testimony established on May 7, 2006, a person gained entry to Mr. Haggerty's residence at 186 E. 16th Avenue. At approximately 2 a.m., Mr. Haggerty heard footsteps in the residence and looked outside to see a man who had no permission to be there leaving the residence through the back door carrying a white bag. Mr. Haggerty called 9-1-1 and watched the suspect as he walked away toward 17th Avenue. When a police officer arrived, Mr. Haggerty went outside and walked with the officer in the direction the suspect had gone, whereupon they saw a man standing in front of a dumpster. Though Mr. Haggerty testifiеd he lost sight of the suspect for about 20 seconds, Mr. Haggerty stated the person at the dumpster was "absolutely" the person he *12 saw leaving his residence. Mr. Haggerty also identified the items on the ground by appellant as those belonging to him and his roommates.
{¶ 20} Sgt. Shinaver testified he was seven or eight blocks away when he received the dispatch to a burglary at 186 E. 16th Avenue. As he approached the scene, he saw an individual, later identified as appellant, matching the description of the suspect standing near a dumpster and carrying a white bag. Upon seeing the officer, appellant threw down the white bag. The contents of the white bag and those wrapped in a green blanket next to appellant were identified by Mr. Haggerty as belonging to him and his roommates.
{¶ 21} Based on the evidence аnd the testimony of the witnesses viewed in a light most favorable to the prosecution, a reasonable trier of fact could have found the essential elements of burglary proven beyond a reasonable doubt. Therefore, we cannot conclude there is insufficient evidence to sustain appellant's conviction.
{¶ 22} Similarly, we cannot say that the jury's verdict was against the manifest weight of the evidence. The basis for appellant's manifest weight challenge is primarily the lack of direct evidence linking appellant to the burglary at issue. While appellant asserts the lack of direct evidence in this matter requires a reversal of his conviction, we note that a conviction is "`not against the manifest weight of the evidence simply because the jury believed the prosecution testimony.'"State v. Rippey, Franklin App. No. 04AP-960,
{¶ 23} We have reviewed the entire record and weighed the evidence and all reasonable inferences to be drawn therefrom, and have considered the credibility of the witnesses. After review of the record, we conclude that there is nothing to indicate that the jury clearly lost its way or that appellant's conviction creates a manifest miscarriage of justice. Consequently, we cannot say that appellant's conviction is against the manifest weight of the evidence.
{¶ 24} Accordingly, we overrule appellant's third, appellant's fifth, and his counsel's single assignment of error.
{¶ 25} For coherency, we will address appellant's remaining assignments of error out of order. In his second assignment of error, appellant alleges prosecutorial misconduct. Specifiсally, appellant asserts the prosecutor used false evidence, elicited perjured testimony, made improper closing arguments, and concealed favorable evidence.
{¶ 26} The test for prosecutorial misconduct is whether the remarks were improper and, if so, whether they prejudicially affected the accused's substantial rights. State v. Smith (1984),
{¶ 27} The false evidence according to appellant is the prosecutor's use of a falsely documented weight of appellant. Appellant asserts the prosecutor used a *14 previous arrest sheet of appellant stating appellant's weight was 180 pounds when at the time of his arrest appellant weighed only 149 pounds, and at the time of trial he weighed 189 pounds. In order to meet the test for prosecutorial misconduct under these circumstances, appellant must show that: (1) the statement was false, (2) the statement was material, and (3) the prosecutor knew it was false. Columbus v.Joyce (Nov. 29, 2001), Franklin App. No. 00AP-1486. Even if a prosecutor engaged in such misconduct, an appellate court should not reverse a conviction if the error was harmless. Id.
{¶ 28} Initially, we note the record contains no evidence that the prosecutor knew the weight of appellant was "false," if in fact it was. Secondly, there was no objection to the above testimony at trial; therefore, appellant has waived all but plain error. State v.Keenan (1998),
{¶ 29} Appellant also asserts the prosеcutor elicited false testimony because the witnesses gave inconsistent testimony regarding the color of pants appellant was wearing the night of his arrest. To the extent it can be said any of the witnesses gave inconsistent *15 testimony in this matter, there is nothing in the record to suggest it was the result of the prosecutor's actions. As discussed previously, the determination of weight and credibility of the evidence is for the trier of fact. DeHass, supra. The rationale is that the trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimony is credible. Williams, supra. The trier of fact is free to believe or disbelieve all or any of the testimony. Jackson, supra.
{¶ 30} Appellant next asserts the prosecutor made inappropriаte comments during closing arguments. In general, prosecutors are given considerable latitude in opening statement and closing argument.Ballew, supra, at 255. In closing argument, a prosecutor may freely comment on "`what the evidence has shown and what reasonable inferences may be drawn therefrom.'" Lott, supra, at 165, quoting State v.Stephens (1970),
{¶ 31} Lastly, appellant asserts the prosecutor withheld exculpatory evidence; namely, the police report made the night of appellant's arrest. To the extent this can be construed as an alleged violation ofBrady v. Maryland (1963),
{¶ 32} For the foregoing reasons, we overrule appellant's second assignment of error.
{¶ 33} In his fourth assignment of error, appellant suggests the trial court abused its discretion and committed plain error when it denied his Crim. R. 29 motion made at the conclusion of the prosecution's case. "The standard of review applied to a denied motion for acquittal pursuant to Crim. R. 29 is virtually identical to that employed in a challenge to the sufficiency of the evidence." State v. Turner, Franklin App. No. 04AP-364,
{¶ 34} Appellant next contends the trial court erred in not ruling on his objection to exclude the police report. According to appellant, Sgt. Shinaver testified that he saw appellant throw a white bag, and that appellant was wearing "light" pants when arrested, but neither of these statements appear in the police report. With respect to admissibility of police reports, it is well-established that police reports are generally inadmissible hearsay, unless offered by the defendant, unless the source of information or other *17
circumstances indicate lack of trustworthiness. Evid. R. 803; State v.Williams, Trumbull App. No. 2005-T-0123,
Thank you. Just for the record I deny, and I want to state for the record that I absolutely deny in any shape or form that I shared any information whatsoever with the prosecutor as to the police reporting question.
Your Honor, there has not been any information shared and your Honor, the police report has not been entered into evidence, that's number one. And also the police officer who actually wrote that report was not here, and the things that were written in that report are not helpful to Mr. Hillman. And that is one of the reasons why I did not want to have that come into evidence.
(Tr. at 125.)
{¶ 35} Appellant next argues the trial court erred in not instructing the jury on a "lesser degree of burglary under 2911.12(A)(4) after the trial court illеgally allowed the prosecutor to nolle prosequi the theft offense just prior to jury deliberations." (Nov. 27, 2007 Brief at 24.) Such instruction was not requested at trial, and, therefore, appellant has waived all but plain error. State v. Dennis, Franklin App. No. 04AP-595,
{¶ 36} An instruction on a lesser-included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser-included offense. Id., at ¶ 15, citing State v. Thomas (1988),
{¶ 37} Appellant next contends the trial court did not inquire into his allegation that his trial counsel and the prosecutor "had conspired by sharing information and allowing state witnesses to commit perjury." (Nov. 27, 2007 Brief at 25.) However, we find the transcript clearly refutes appellant's position. In addition to appellant's counsel's comments cited above, the prosecutor stated:
Your Honor, I take offense to that. The bottom line here is Sgt. Shinaver testified to his clothing and said that his pants were lighter in color, not light gray pants or anything like that. He just was making a color contrast statements, but all of this is an issue for the jury to decide.
(Tr. at 124.)
{¶ 38} Additionally, the trial court stated:
All right, the court had the benefit of Mr. Hillman's statement, and we are now ready to proceed with closing arguments; and also the court wants to put on the record that I have found no prosecutorial misconduct, and the court further finds that [appellant's counsel] is to continue to represent Mr. Hillman, and that [appellant's counsel] has conducted herself most professionally and effectively and has continued to do that *19 throughout this trial, and we are now ready to begin with closing arguments.
Id. at 126.
{¶ 39} Lastly, under this assignment of error, appellant contends his sentence is contrary to law because the jury's verdict was based on a defective indictment. Because his sixth assignment of error concerns the indictment, we will address this last argument in our disposition of appellant's sixth assignment of error.
{¶ 40} For the foregoing reasons, we overrule appellant's fourth assignment of error.
{¶ 41} In his sixth assignment of errоr, appellant contends the trial court lacked subject matter jurisdiction based on a defective indictment. It is well-established that a common pleas court has original jurisdiction in felony cases and its jurisdiction is invoked by the return of an indictment. Click v. Eckle (1962),
{¶ 42} In his first assignment of error, appellant contends he was denied effective assistance of trial counsel as guaranteed by the United States and Ohio Constitutions. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v.Washington (1984),
{¶ 43} According to Strickland:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by theSixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors werе so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687. *21
{¶ 44} "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome thе presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, quotingMichel v. Louisiana (1955),
{¶ 45} Appellant contends his counsel was ineffective for: (1) failing to file a motion to suppress; (2) allowing and contributing to perjured testimony; (3) failing to object during trial and closing arguments; (4) aiding in excluding exculpatory evidence from trial; (5) not requesting a lesser-included degree of burglary; and (6) failing to request an eyewitness expert.
{¶ 46} In his first assignment of error, appellant asserts his counsel was ineffective for failing to file a motion to suppress the victim's identification of him. It is appellant's position the identification should have been suppressed beсause it was made at the "highly suggestive show-up" and the victim's identification of appellant was unreliable. The "`[f]ailure to file a motion to suppress constitutes ineffective assistance of counsel only if, based on the record, the motion would have been granted.'" State v. Shipley, Franklin App. No. 05AP-385,
{¶ 47} A "show-up" is inherently suggestive. See, e.g., Ohio v.Barnett (1990),
{¶ 48} Here, Mr. Haggerty testified he viewed a man exit the house with a white bag in his hands. Mr. Haggerty described the individual as a black male wearing dark clothing and a white hat. Mr. Haggerty watched the man exit the back of the house and walk toward 17th Avenue. Mr. Haggerty stated he lost sight of the person for approximately 20 seconds until he and a police officer turned a corner and saw the individual standing in front of a dumpster. Mr. Haggerty testified appellant was absolutely the man he saw leaving his residence with the white bag. Further, items from Mr. *23 Haggerty's house were found on the ground by appellant, some contained in a white bag, others wrapped in a dark colored blanket.
{¶ 49} Given the victim's opportunity to view appellant as he was exiting the residence, the victim's description of appellant, the very short time between the commission of the crime and the victim's identification of appellant, we cannot say that the show-up identification procedure created a substantial likelihood of misidentification such that a defense counsel's motion to suppress the victim's identification of appellant at the scene would have been granted.
{¶ 50} Appellant next claims his counsel permitted the prosecutor to present perjured testimony. This allegation, as discussed under appellant's prior assignments of error, stems from Sgt. Shinaver's testimony. We have already found no evidence in the rеcord to support appellant's blanket assertion regarding perjured testimony. To the extent appellant asserts Sgt. Shinaver's testimony was inconsistent, such is a matter within the purview of the jury's determination.
{¶ 51} Appellant also contends his counsel was ineffective because she tried to bully him into taking a plea and she did not prepare for trial. The record, including the trial court's finding of appropriate and professional conduct by appellant's counsel, clearly refutes appellant's position. (Tr. at 126.)
{¶ 52} Appellant asserts Sgt. Shinaver's testimony, that he saw appellant throw a white bag later determined to contain items from Mr. Haggerty's residence, was prejudicial and should not have been admitted. However, appellant provides, and we find no basis for this assertion. *24
{¶ 53} Apрellant also contends the police report was withheld from him, and his counsel failed to object to the prosecutor's closing arguments. As we have already discussed, there is no evidence the police report was withheld from appellant, and his counsel cross-examined the officer who used the report to refresh his recollection during trial. Further, we have determined there was no basis for appellant's prosecutorial misconduct claim pertaining to the prosecutor's closing arguments. Therefore, we are not able to find error in trial counsel's alleged failure to object.
{¶ 54} Appellant contends his counsel was ineffective for failing to request an instruction on a lesser-included offense. Again, we have already determined that appellant wаs not entitled to a jury instruction on a lesser-included offense in this case. Further, trial counsel's failure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish ineffective assistance of counsel. Dennis, supra.
{¶ 55} Lastly, appellant contends under this assignment of error that his counsel was ineffective for failing to obtain an "eyewitness expert." However, State v. Madrigal (2000),
{¶ 56} Accordingly, we overrule appellant's first assignment of error. *25
{¶ 57} We now address appellant's assignments of error pertaining to the trial court's denial of his petition for postconviction relief.
{¶ 58} On November 30, 2006, appellant filed a petition for postconviction relief pursuant to R.C.
{¶ 59} In his first assignment of error, appellant contends the trial court abused its discretion in denying his petition for postconviction relief without an evidentiary hearing. Appellant's right to postconviction relief arises from R.C.
Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
{¶ 60} "A petition for postconviction relief is a statutory vehicle designed to correct the violation of a defendant's constitutional rights." State v. Hessler, Franklin App. *26
No. 01AP-1011,
{¶ 61} A petitioner who seeks to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing. State v. Jackson (1980),
{¶ 62} Appellant argues there were multiple instances of prosecutorial misconduct that affected his right to a fair trial. The misconduct alleged includes procuring false testimony and making inappropriate closing arguments. The instances complained of, however, are contained in the record and, as demonstrated above, have been raised, and addressed, in appellant's direct appeal. Therefore, we find appellant's postconviction collateral attack on the basis of prosecutorial misconduct is barred by res judicata. State v. Sowell, Franklin App. No. 07AP-809,
{¶ 63} Appellant also raises arguments pertaining to the "deliberate exclusion" of the police report from evidence and asserts such conduct constitutes a Brady violation. This argument, however, is also barred by res judicata as the matter complained of is contained in the record and was raised, and addrеssed, in appellant's direct appeal. Thus, we find no error in the dismissal of appellant's petition for postconviction relief without a hearing as appellant failed to set forth sufficient operative facts to establish substantive grounds for relief. Accordingly, we overrule appellant's first assignment of error.
{¶ 64} In his second and third assignments of error, appellant makes an argument pertaining to Civ. R. 56 and 55. Specifically, appellant contends the trial court should have granted his motion for summary judgment and the trial court should have granted default judgment in his favor because appellee did not respond to his motion for summary judgment. The judgment entry appealed from concerns the trial court's denial of appellant's postconviction petition relief pursuant to R.C.
{¶ 65} For the foregoing reasons, appellant's ten assignments of error are overruled, and the judgments of the Franklin County Court of Common Pleas are hereby affirmed.
Judgments affirmed.
BRYANT and TYACK, JJ., concur.