STATE OF OHIO v. TIMOTHY L. PICKETT
Case No. 15CA13
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
6-20-16
[Cite as State v. Pickett, 2016-Ohio-4593.]
ABELE, J.
DECISION AND JUDGMENT ENTRY
George W. Leach, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 6-20-16
ABELE, J.
{1} This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. The trial court found Timothy Pickett, defendant below and appellant herein, guilty of (1) aggravated burglary in violation of
{2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN ALLOWING JEFF MCCULLOCH AND MARK DOWDY TO REMAIN PRESENT IN THE COURT ROOM DURING THE TRIAL AFTER DEFENSE COUNSEL REQUESTED A SEPARATION OF WITNESSES PURSUANT TO EVID.R. 615.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT CONVICTED THE APPELLANT OF AGGRAVATED BURGLARY AND FELONIOUS ASSAULT AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“APPELLANT DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT AGGRAVATED BURGLARY AND FELONIOUS ASSAULT WERE ALLIED OFFENSES WHICH WOULD MERGE FOR SENTENCING PURPOSES.”
{3} On November 12, 2013, appellant and his son, Michael Wright, entered Jeffrey McCulloch‘s home, while McCulloch and his friend, Mark Dowdy, were present. The parties dispute the precise series of events that transpired and the circumstances under which appellant and Wright entered McCulloch‘s home. What is not disputed, however, is that Wright stabbed McCulloch, which caused McCulloch‘s intestines to protrude.
{4} On April 28, 2014, an Athens County grand jury returned an indictment that charged appellant with aggravated burglary and felonious assault. Appellant entered not guilty pleas.
{5} On March 10 and 11, 2015, the trial court held a bench trial. To start, the state requested the court to allow the two victims, McCulloch and Dowdy, to remain in the courtroom. Appellant, however, requested that the court prohibit the victims from remaining in the courtroom during the other‘s testimony. The court ruled that the victims could remain in the courtroom throughout the trial and that the court would “take into consideration any weight that it might give their testimony, after hearing the testimony of any other individuals in this case.”
{6} McCulloch testified and explained the November 12, 2013, incident as follows. Shortly after Dowdy arrived at his home, McCulloch heard a knock on his door. McCulloch asked who it was, and a voice responded, “John.” McCulloch asked, “John who?” The voice responded, “Woolett.” McCulloch explained that he knew an individual named John Woolett so he requested Dowdy to open the door. As soon as Dowdy opened the door, appellant and Wright charged in the door. Wright had his hand in his pocket and McCulloch “kn[e]w [Wright] had a weapon of some kind.” McCulloch, apparently discerning a threat, “took [Wright] to the ground.” Wright extricated himself from McCulloch‘s hold and threatened to cut off McCulloch‘s finger with a pocket knife and also threatened to slit his throat. McCulloch stated that Wright wanted McCulloch‘s “money or drugs.” McCulloch refused to cede to Wright‘s will, and Wright stabbed him. At that point, appellant stated, “I‘m out of here,” and both appellant and Wright fled the premises.
{7} Dowdy testified and explained the November 12, 2013 incident as follows. He was visiting McCulloch when they heard a knock on the door. As soon as Dowdy opened the door, appellant and Wright rushed in and asked where the “money and drugs” were located. Appellant and Wright stated that they were “there to rob” McCulloch and Dowdy. McCulloch
{8} After the state rested, appellant moved for a
{9} In his defense, appellant presented testimony from his wife, Carla Pickett. She stated that she saw appellant and Wright after they had been to McCulloch‘s house and that both appeared upset. She noted that appellant had a knife sticking out of his coat pocket. Carla stated that she had never seen this knife before and that appellant appeared surprised to find it there.
{10} Appellant offered the following version of the events of November 12, 2013. Appellant needed to pick up some money from an individual named “Jack.” Wright and appellant drove to Jack‘s house, but Jack was not home. Wright suggested that while they wait for Jack to return, they visit one of his friends. Wright drove to McCulloch‘s trailer. Appellant became concerned that Wright intended to purchase drugs during this visit, so he accompanied Wright to the door. Wright knocked on the door. When the door opened, they both stepped inside. McCulloch then attacked Wright. Appellant stated that he tried to help Wright so they could leave, because he did not “know what in the heck is going on.” Dowdy grabbed appellant, and appellant pushed Dowdy to the couch. Appellant tried to break up the fight between Wright and McCulloch and Dowdy approached Wright with a knife and stated, “I‘m going to kill ya.” Appellant subdued Dowdy, and then he and Wright left. Appellant was unaware that McCulloch had been stabbed, and he did not know that Wright had carried a knife into McCulloch‘s trailer.
{11} Appellant also denied that either he or Wright claimed to be “John Woolet” when they knocked on McCulloch‘s door. He also denied knowing the origin of the knife that he found in his coat pocket later in the evening. Appellant claimed that when he went to
{12} On March 19, 2015, the trial court orally announced its decision and found appellant guilty of aggravated burglary and complicity to felonious assault. The court explained its findings and noted that McCulloch‘s and Dowdy‘s testimony revealed some inconsistencies, but the court did not find them “so * * * different that it * * * leads the Court to a different conclusion.” The court stated that it shared appellant‘s counsel‘s concerns regarding both victims remaining in the courtroom during the testimony and explained: “I think it makes it * * * certainly suspect at a minimum of what their testifying to by their own recollection as [o]pposed to what they just heard. [sic]” The court considered appellant‘s assertion that he was a tacit participant in the events, but found evidence to the contrary. The court observed that it had reviewed videotaped surveillance footage of appellant‘s and Wright‘s conduct before knocking on McCulloch‘s door and found that “they did not immediately go to the door upon entering the driveway.” The court believed that their conduct showed that they had “preplanned” this “mission.” The court further noted that Dowdy testified that appellant asked for money during the encounter. The court further found that appellant inflicted, or threatened to inflict, physical harm upon Dowdy and that he had a deadly weapon (a knife) on or about his person or under his control. The court additionally determined that appellant‘s conduct facilitated Wright in stabbing McCulloch and that he thereby aided or abetted Wright in committing felonious assault.
{13} On April 13, 2015, the trial court found appellant guilty of (1) aggravated burglary in violation of
“Although these crimes could be committed with the same act, the Aggravate[d] Burglary was completed upon Defendant forcing his way into the home, demanding money and threatening the victims and, indeed, by sitting on the one victim‘s chest and kneeling on his arms. The felonious assault against the other victim occurred after the burglary was complete, and in which Defendant was found to be complicit. Defendant had separate animi for each of the crimes and there were separate victims of each of the crimes.”
The court sentenced appellant to serve four years in prison for aggravated burglary and two years for felonious assault with the sentences to be served consecutively. This appeal followed.
I
{14} In his first assignment of error, appellant asserts that the trial court abused its discretion by permitting the alleged victims, McCulloch and Dowdy, to remain in the courtroom during trial. Appellant contends that permitting them to remain in the courtroom violated his right to a fair trial. Appellant argues that permitting both alleged victims to remain in the courtroom allowed the second victim who testified, Dowdy, to ensure that his testimony was consistent with the first victim‘s testimony.
Appellant additionally contends that the trial court wrongly determined that Dowdy was a “victim” of the crime and, thus, not subject to the separation of witnesses rule. Appellant notes that the indictment identified McCulloch and Dowdy as aggravated burglary victims and identified McCulloch as the only felonious assault victim. Appellant asserts, however, that Dowdy could not have been an aggravated burglary victim because he did not own the house and was not deprived of his possessions or property.
{15} Generally, a trial court possesses discretion to allow a victim to remain in the courtroom during testimony. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶96; State v. Shifflet, 2015-Ohio-4250, 44 N.E.3d 966 (4th Dist.), ¶67, citing In re Morris, 12th Dist. Butler No. CA2002-03-054, 2002-Ohio-5881, 2002 WL 31414557; State v. Maley, 1st Dist. No. C-120599, 2013-Ohio-3452, ¶3; State v. Klusty, 5th Dist. Delaware No. 14CAA070040, 2015-Ohio-2843, ¶32. Consequently, a reviewing court will not reverse a trial court‘s decision to allow a victim to remain in the courtroom during testimony unless the trial court abused its discretion. “An abuse of discretion is more than a mere error of law or judgment.” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶91; accord State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶75. Instead, “‘[a] trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.‘” State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶7, quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶34. 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, “[a]buse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” Darmond at ¶34.
{16}
(A) Except as provided in division (B) of this rule, at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. An order directing
the “exclusion” or “separation” of witnesses or the like, in general terms without specification of other or additional limitations, is effective only to require the exclusion of witnesses from the hearing during the testimony of other witnesses.
The purpose of a separation order is “‘so that [witnesses] cannot hear the testimony of other witnesses,’
{17}
{18} The defendant bears the burden of establishing that the victim‘s presence compromises the defendant‘s right to a fair trial. State v. Ricco, 11th Dist. Lake No. 2008-L-169, 2009-Ohio-5894, ¶27. “[F]or a defendant to show that a victim‘s presence would result in an unfair trial, she must present particularized evidence that the victim‘s testimony will be so affected by the victim‘s presence during the testimony of other witnesses that her right to a fair trial would be violated. General assertions that it is possible are insufficient.” State v. Maley, 1st Dist. Hamilton No. C-120599, 2013-Ohio-3452, ¶7.
{19} In the case sub judice, we do not believe that the trial court abused its discretion by permitting both victims to remain in the courtroom. Appellant has not shown how permitting the two alleged victims to remain in the courtroom prejudiced his right to a fair trial. We point out that appellant chose to be tried by the court, and not by a jury. The trial court specifically stated that it understood appellant‘s concerns that the victims might tailor their testimony to conform to the other and took this consideration into account. See State v. Ricco, 11th Dist. Lake No. 2008-L-169, 2009-Ohio-5894, ¶27 (determining that in bench trial, defendant‘s right to fair trial not violated by permitting victim to remain in courtroom during testimony). Furthermore, appellant‘s counsel cross-examined each victim regarding his testimony and questioned each about apparent inconsistencies in their versions of the events that transpired on November 12, 2013. Maley at ¶8 (stating that defendant‘s “argument that the victim ‘tailored’ his testimony to what he heard from [other witnesses] is negated by his cross-examination“); State v. Marshall, 12th Dist. Butler No. CA2008-03-093, 2009-Ohio-2197, ¶44 (noting that defendant‘s attorney cross-examined alleged victims “and therefore had the opportunity to test whether their testimony was tailored or truthful“); State v. Barney, 4th Dist. Meigs No. 97CA12, 1999 WL 378755, *7 (June 7, 1999). We additionally observe that the victims’ testimony did not mirror each other in a manner to suggest that the second victim who testified, Dowdy,
{20} Furthermore, we reject appellant‘s argument that the trial court erred by determining that Dowdy was a “victim” not subject to exclusion. We observe that appellant did not argue during the trial court proceedings that the court erred by concluding that Dowdy was a “victim” of the crime and not subject to exclusion. Thus, appellant forfeited the right to raise this issue on appeal. It is well-established that “an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. Appellate courts nevertheless have discretion to consider forfeited issues using a plain-error analysis. E.g., Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶27.
{21} In the case sub judice, assuming, arguendo, that the trial court improperly determined that Dowdy was a “victim,”1 and thus, improperly permitted him to remain in the courtroom during other witnesses’ testimony, appellant cannot show that Dowdy‘s exclusion from the courtroom during other witnesses’ testimony would have changed the result of his trial. As we explained, appellant has not shown that Dowdy‘s testimony closely mirrored McCulloch‘s so as to suggest that Dowdy tailored his testimony to match McCulloch‘s testimony. Additionally, nothing in the record suggests that Dowdy otherwise tailored his testimony to match any other witnesses’ testimony. Given these circumstances, we do not see how excluding Dowdy from the courtroom during other witnesses’ testimony would have affected the outcome of the trial.
{22} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s first assignment of error.
II
{24} Initially, we observe that although appellant combines the sufficiency2 and manifest weight of the evidence arguments, “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 (stating that “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 legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 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
{25} 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 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).
{26} “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. When an appellate court considers a claim that a conviction is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the evidence and all reasonable inferences, and consider the witness credibility. State v. Dean, 2015-Ohio-4347, ¶151, citing Thompkins, 78 Ohio St.3d at 387. A reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93 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
“‘[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, 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.“).
{27} Once the reviewing court finishes its examination, the court may reverse the judgment of conviction only if it appears that the fact-finder, when resolving 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). If the
{28} When an appellate court concludes that the weight of the evidence supports a defendant‘s conviction, this conclusion necessarily includes a finding that sufficient evidence supports the conviction. See State v. Pollitt, 4th Dist. Scioto No. 08CA3263, 2010-Ohio-2556, ¶15. “Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” State v. Lombardi, 9th Dist. Summit No. 22435, 2005-Ohio-4942, ¶9, quoting State v. Roberts, 9th Dist. Lorain No. 96CA6462 (Sept. 17, 1997). In the case sub judice, therefore, we first consider whether appellant‘s convictions are against the manifest weight of the evidence.
{29} In the case at bar, we believe that the state presented substantial competent and credible evidence to support appellant‘s aggravated burglary and complicity to felonious assault convictions. This is not one of those exceptional circumstances where the evidence weighs heavily against conviction.
{30} The aggravated burglary statute,
No person, by force, stealth, or deception, shall 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 structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.
{31} We believe, after our review of the record, that substantial competent and credible evidence supports a finding that appellant unlawfully trespassed in McCulloch‘s home with purpose to commit theft and that he inflicted, or attempted or threatened to inflict, physical harm on McCulloch or Dowdy. Both McCulloch and Dowdy testified that appellant and Wright gained entry to the home by claiming to be “John Woolet.” After Dowdy opened the door
{32} Additionally, we do not believe that appellant‘s complicity to felonious assault conviction is against the manifest weight of the evidence. The felonious assault statute,
“To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2) , the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime.”
State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus; accord In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶13. “‘Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed.‘” Johnson, 93 Ohio St.3d at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist. 1971). However, “‘the mere presence of an accused at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.‘” Id. at 243, quoting State v. Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to protect innocent bystanders who have no connection to the crime other than simply being present at the time of its commission.” Id.
{33} In the case sub judice, we believe that substantial competent and credible evidence supports a finding that appellant was more than an innocent bystander to the felonious assault, but instead, that he knowingly aided or abetted Wright in committing felonious assault. The state presented evidence that appellant participated in the fight between Wright and McCulloch and that his assistance facilitated Wright‘s stabbing of McCulloch. The court explained that it did not have “difficulty” finding appellant guilty of “felonious assault because it is almost essentially due to [appellant]‘s actions that * * * the stabbing of Mr. McCulloch was able to take place according to how the events unfolded.” Additionally, Dowdy testified that appellant expressed an intent to kill. Thus, the evidence supports a finding that appellant possessed at least the same criminal intent as Wright. Furthermore, according to both McCulloch and Dowdy, appellant and Wright each expressed either verbally or through their conduct, their intent to harm McCulloch and Dowdy in order to obtain drugs and money. Additionally, the trial court found that appellant had a knife in his possession during the melee. Although appellant offered an innocent explanation and claimed that he discovered the knife in his coat pocket after leaving McCulloch‘s house, the trial court was free to reject appellant‘s explanation and believe that appellant went to McCulloch‘s house armed with a knife. The evidence concerning appellant‘s presence in McCulloch‘s house, his companionship with Wright, and his conduct before and
after the offense amply supports a finding that appellant knowingly aided or abetted Wright in committing felonious assault. We do not believe that the fact-finder clearly lost its way by convicting appellant. Consequently, appellant‘s complicity to felonious assault conviction is not against the manifest weight of the evidence. participated in Wright‘s criminal intent.
{34} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s second assignment of error.
III
{35} In his third assignment of error, appellant asserts that trial counsel performed ineffectively in the following respects: (1) by failing to object to hearsay; (2) by failing to object to leading questions; (3) by failing to view the exhibits handed to witnesses to confirm that they were the correct exhibits; (4) by failing to review the documents to which trial counsel stipulated; (5) by stipulating to the admission of medical records instead of cross-examining medical providers and objecting on the basis of hearsay; (6) by stipulating to the “serious physical injury” element of felonious assault instead of requiring medical testimony; and (7) by failing to advise appellant that trial counsel, a former Athens County assistant prosecuting attorney, prosecuted appellant in 2008 for aggravated possession of drugs.
A
INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
{36} The
{37} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. Strickland, 466 U.S. at 687; State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶85. “In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶95 (citations omitted); accord State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶81. “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) (stating that a defendant‘s failure to satisfy one of the elements “negates a court‘s need to consider the other“).
{38} 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. “A properly licensed attorney is presumed to
{39} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel‘s errors, the result of the trial would have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶113; State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts may not simply assume the existence of prejudice, but must require the 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). As we have repeatedly recognized, speculation is insufficient to demonstrate the prejudice component of an ineffective assistance of counsel claim. E.g., State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶22; 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 (stating that an argument that is purely speculative cannot serve as the basis for an ineffectiveness claim).
B
HEARSAY
{41} First, we observe that ““[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.“” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). A defendant must also show that he was materially prejudiced by the failure to object. Holloway, 38 Ohio St.3d at 244. Accord State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233.
{42} Additionally, tactical decisions, such as whether and when to object, ordinarily do not give rise to a claim for ineffective assistance. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶¶139-140. As the court explained in Johnson at ¶¶139-140:
“[F]ailure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel. To prevail on such a claim, a defendant must first show that there was a substantial violation of any of defense counsel‘s essential duties to his client and, second, that he was materially prejudiced by counsel‘s ineffectiveness. State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831. * * * [F]xperienced trial counsel learn that objections to each potentially objectionable event could actually act to their party‘s detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections,
despite numerous and clear reasons for doing so, that counsel‘s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d 754, 774. Accord State v. Campbell, 69 Ohio St.3d 38, 52-53, 1994-Ohio-492, 630 N.E.2d 339.”
{43} In the case sub judice, we believe that trial counsel‘s decision not to object fell within the broad realm of trial strategy and did not constitute deficient performance. Moreover, even if trial counsel performed deficiently by failing to object to alleged hearsay testimony, appellant cannot demonstrate that the failure to object affected the outcome of the trial. Even if the statements had been excluded, the evidence still amply establishes that appellant committed aggravated burglary (i.e., that appellant and Wright unlawfully entered McCulloch‘s house, took McCulloch‘s money, and injured both McCulloch and Dowdy) and that he knowingly aided or abetted Wright in committing felonious assault. While appellant speculates that some of the alleged hearsay statements bolstered the state‘s theory of the case, his speculation is not sufficient to demonstrate ineffective assistance of counsel. Had trial counsel objected to the statements and the court excluded them, we cannot find a reasonable probability that the outcome of the proceedings would have been different.
C
LEADING QUESTIONS
{44} Appellant next argues that trial counsel performed ineffectively by failing to object to leading questions. We do not agree.
{45} ”
D
EXHIBITS AND STIPULATIONS
{46} Appellant next argues that trial counsel performed ineffectively (1) by failing to ask to see State‘s Exhibits 35 and 36, copies of the lineup photographs, before the prosecutor showed them to the witness, (2) by failing to review the two hundred eighty pages of medical records to which counsel had stipulated, (3) by stipulating to the admission of medical records and, thus, forgoing the opportunity to cross-examine the medical providers, and (4) by stipulating to the “serious physical harm” element of felonious assault.
E
Alleged conflict of interest
{48} Appellant additionally claims that trial counsel, a former Athens County assistant prosecutor, performed ineffectively by failing to advise appellant that counsel previously prosecuted appellant for aggravated drug possession.
{49} The
“A possible conflict of interest exists where the ‘“interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties.“” State v. Dillon (1995), 74 Ohio St.3d 166, 168, 657 N.E.2d 273, 275-276, quoting Cuyler, 446 U.S. at 356, 100 S.Ct. at 1722, 64 L.Ed.2d at 351-352, fn.3. It follows, then, that an actual conflict of interest exists if, ““during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.“” Id. at 169, 657 N.E.2d at 276, quoting Cuyler, 446 U.S. at 356, 100 S.Ct. at 1722, 64 L.Ed.2d at 351-352, fn.3; see, also, Winkler[ v. Keane], 7 F.3d [304,] 307 [(C.A.2, 1993). Indeed, we have said that a lawyer represents conflicting interests ‘when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.’ [State v.] Manross, 40 Ohio St.3d 180,] 182, 532 N.E.2d [735,] 738 [(1988).]”
Gillard, 78 Ohio St.3d at 552-53 (emphases omitted.).
{50} In the case at bar, appellant has not identified how his trial counsel represented divergent interests. His conclusory allegation that trial counsel was ineffective for failing to inform appellant that counsel previously prosecuted appellant in a criminal trial does not sufficiently show an actual conflict of interest. State v. Stewart, 4th Dist. Washington No. 02CA29, 2003-Ohio-4850, ¶19. Consequently, appellant has not shown that trial counsel rendered ineffective assistance of counsel.
IV
{52} In his fourth assignment of error, appellant argues that the trial court erred by failing to merge his aggravated burglary and felonious assault convictions. He asserts that the two offenses were of similar import, occurred contemporaneously, and were committed with the same animus.
{53} Appellate courts conduct a de novo review of a trial court‘s
{54} ”
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may
contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{55} Courts conduct a three-part inquiry to determine whether offenses are allied offenses of similar import within the meaning of
{56} Offenses are of dissimilar import “if they are not alike in their significance and their resulting harm.” Ruff at ¶21. Thus, “two or more offenses of dissimilar import exist within the meaning of
{58} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s fourth assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that 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 Athens 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 sixty 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 sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five 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 sixty 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.
For the Court
McFarland, J. & Hoover, J.: Concur in Judgment & Opinion
BY: ____________________
Peter B. Abele, Judge
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.
Notes
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
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.