State v. Bertram

2022 Ohio 2488

• Court: Ohio Court of Appeals
• Decided: July 15, 2022
• Docket: 21CA3950
• Status: Published

Opinion

[Cite as State v. Bertram, 2022-Ohio-2488.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 21CA3950

v. :

DONALD R. BERTRAM, JR., : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Karyn Justice, Portsmouth, Ohio, for appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:7-15-22 ABELE, J.

{¶1} This is an appeal from a Scioto County Common Pleas

Court judgment of conviction and sentence. A jury found Donald

R. Bertram, Jr., defendant below and appellant herein, guilty of

burglary, a second-degree felony, in violation of R.C.

2911.12(A)(2).

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR: SCIOTO, 21CA3950 2

“APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

SECOND ASSIGNMENT OF ERROR:

“THE COURT ERRONEOUSLY OVERRULED APPELLANT’S MOTION FOR ACQUITTAL.”

THIRD ASSIGNMENT OF ERROR:

“THE COURT ERRONEOUSLY OVERRULED APPELLANT’S MOTIONS FOR A MISTRIAL.”

FOURTH ASSIGNMENT OF ERROR:

“APPELLANT’S SENTENCE IS CONTRARY TO LAW.”

FIFTH ASSIGNMENT OF ERROR:

“APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE IN HIS REPRESENTATION OF THE APPELLANT.”

SIXTH ASSIGNMENT OF ERROR:

“THE CUMULATIVE EFFECT OF THESE ERRORS DEPRIVED APPELLANT OF A FAIR TRIAL.”

{¶3} While working outside of his residence during the

afternoon of September 18, 2020, Timothy Huff observed appellant

walk, uninvited, into Huff’s open garage and take a leaf blower

that Huff recently had purchased. A Scioto County Grand Jury

returned an indictment that charged appellant with (1) burglary,

in violation of R.C. 2911.12(A)(2) and 2911.12(D), and (2)

breaking and entering, in violation of R.C. 2911.13(A) and

2911.13(C). Appellant entered not guilty pleas and the state

later dismissed the breaking and entering charge. SCIOTO, 21CA3950 3

{¶4} On May 17, 2021, the trial court held a jury trial.

During voir dire, one juror (number eight) stated that she twice

had been a burglary victim. The prosecutor asked the juror

whether her experience impacted her ability to be fair and

impartial, and the juror responded “I don’t think [sic].” When

appellant’s trial counsel questioned the juror, he asked her to

explain what happened and she stated that the person broke into

her house and that “it was just traumatizing.” Appellant’s

counsel then asked the juror whether she could “suspend

judgment” until she hears all of the evidence, and she replied

that “[i]t would be hard.” The trial court also questioned the

juror and asked if she could put her past experience “aside and

base [her] decision as to this case on the evidence and the

testimony” presented in this case. The juror responded:

“Honestly, I don’t think so.”

{¶5} The trial court later asked appellant’s counsel if he

had any challenges for cause and counsel mentioned juror number

eight:

I’m wondering about that. It’s – obviously someone who’s been a victim of burglary twice * * * and I feel that this would probably be–well, I shouldn’t be saying that, but as far as cause I – if I want to get rid of her I think I’d have to use peremptories. SCIOTO, 21CA3950 4

Appellant’s counsel then asked appellant whether he thought they

should leave the juror on the jury and appellant stated: “I

feel like she knows the–she knows what the charge is so she

would be able to help my case in understanding that it’s not a

burglary.” Counsel responded:

Well, it’s your life. You’re relying on that. The other side of that is that she could be someone that – says listen, I’ve got a burglary, I don’t think this guy was punished enough because burglar’s don’t get caught enough, if this guy’s a burglar I want him punished.

Appellant then stated that he believed “she’s capable” and

“she’d be a good candidate.” Appellant thus expressed his

desire to leave her on the jury.

{¶6} The state’s first witness, Portsmouth Police Officer

Clayton Nickell, testified that on September 18, 2020 Huff

reported that a white male had taken a Husqvarna leaf blower

from Huff’s garage. Huff had told the person “to stop several

times.” Authorities later identified the white male as

appellant.

{¶7} Huff testified that on September 18, 2020 he was doing

some yard work at his home when he heard a car with a loud

muffler. Huff noticed the driver, appellant, drive slowly by

Huff’s house and look at his house, then they made eye contact.

When Huff entered his house to retrieve his phone, appellant

continued to drive to the end of the street. SCIOTO, 21CA3950 5

{¶8} At the end of the street, appellant turned around,

drove back up the street and parked “to the side” of Huff’s

house. Huff explained that appellant parked “more in front of

the garage, but behind [Huff’s] truck.” Huff indicated that

appellant would not have been in direct sight of someone who

looked out the front window.

{¶9} After appellant parked, he exited his vehicle and

walked around the front of the car. Huff thought that appellant

may have been approaching him. Huff stated he “was just

shocked” and “didn’t know what was going on.” Huff explained

appellant “had a smile on his * * * face, which threw [Huff]

off.”

{¶10} Appellant entered Huff’s garage, although appellant

did not move at a rapid pace and “that’s what surprised” Huff.

Huff explained that he thought that, if appellant intended to

steal something, “it was going to be * * * real quick.”

Instead, Huff stated that appellant seemed “very cavalier” and

had no “sense of urgency.”

{¶11} Huff further testified that appellant’s presence made

him “nervous,” because Huff “could tell he was under the

influence of something. His * * * behavior was just very off of

a normal person. His eyes were completely glassed over.”

Appellant also “had open lesions all over his body.” Huff said SCIOTO, 21CA3950 6

he was afraid that appellant might cause him physical harm.

{¶12} Huff further related that, once appellant entered the

garage, appellant picked up the leaf blower and walked toward

his car. Huff told appellant to stop and put down the leaf

blower, but appellant placed the blower in the passenger side of

his car and drove away.

{¶13} After Huff’s testimony and the state rested, appellant

moved for a Crim.R. 29(A) judgment of acquittal. Appellant

argued that the state failed to present sufficient evidence to

establish that appellant trespassed by force, stealth, or

deception. The trial court, however, overruled appellant’s

motion. At that point, the defense rested.

{¶14} After the jury began to deliberate, the jury informed

the trial court that it had reached an impasse. The court,

however, instructed the jury to attempt to continue to

deliberate and to reach a verdict. Later, the jury asked the

court to replay Huff’s testimony. After listening to a replay

of Huff’s testimony, the jury returned to deliberate and

subsequently announced they had reached a verdict.

{¶15} When the trial court polled the jurors, one juror

stated that, although she signed the verdict form, she did not

agree with the verdict and felt as though she “was forced into

pleading guilty [sic].” Appellant’s counsel then asked the SCIOTO, 21CA3950 7

court to declare a mistrial. Appellant also asked the court to

declare a mistrial based upon counsel’s belief that the jury

observe appellant in shackles. The court, however, responded

that the table “is equipped with modesty panels and skirting”

and the court did not believe that the shackles “would have been

visible to the jury during the limited time they were back in

the courtroom.” Counsel stated that he thought appellant also

“had the belt on and some handcuffs,” but both the court and the

prosecutor stated they did not believe that the jurors observed

the restraints.

{¶16} The trial court then asked defense counsel if he

wanted the court to give the jurors a curative instruction.

Counsel, however, expressed concern that, if the jurors had not,

in fact, noticed the restraints, the instruction would draw

attention to it. Counsel instead again requested the court

grant a mistrial because counsel believed that any instruction

would not be sufficient. The court, however, stated: “I’m not

sure there’s anything to cure.”

{¶17} At that juncture, the trial court brought the jury

into the courtroom and instructed them to continue to

deliberate. Later, the jury returned a guilty verdict.

{¶18} On May 20, 2021, the trial court sentenced appellant. SCIOTO, 21CA3950 8

The court noted that, at the time of the offense, appellant had

been on post-release control. Consequently, the court (1)

terminated appellant’s post-release control and ordered him to

serve 491 days for the post-release control violation, (2)

sentenced appellant to serve a minimum prison term of eight

years to an “indefinite maximum prison term of up to” 12 years,

and (3) ordered the sentences be served consecutively to one

another. This appeal followed.

I

{¶19} In his first assignment of error, appellant asserts

that his burglary conviction (1) is against the manifest weight

of the evidence, and (2) sufficient evidence does not support

his conviction. In particular, appellant contends that the

evidence fails to show that he used force, stealth, or deception

to enter the victim’s garage.

{¶20} Initially, we observe that “sufficiency” and “manifest

weight” present two distinct legal concepts. Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶

23 (“sufficiency of the evidence is quantitatively and

qualitatively different from the weight of the evidence”); State

v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),

syllabus. A claim of insufficient evidence invokes a due

process concern and raises the question whether the evidence is SCIOTO, 21CA3950 9

legally sufficient to support the verdict as a matter of law.

Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency

of the evidence, our inquiry focuses primarily upon the adequacy

of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable

doubt. Id. at syllabus. The standard of review is whether,

after viewing the probative evidence and inferences reasonably

drawn therefrom in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential

elements of the offense beyond a reasonable doubt. E.g.,

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574

N.E.2d 492 (1991). Furthermore, a reviewing court is not to

assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would

support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook,

J., concurring).

{¶21} Thus, when reviewing a sufficiency of the evidence

claim, an appellate court must construe the evidence in a light

most favorable to the prosecution. E.g., State v. Hill, 75 Ohio

St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio

St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will

not overturn a conviction on a sufficiency-of-the-evidence claim SCIOTO, 21CA3950 10

unless reasonable minds could not reach the conclusion that the

trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162,

749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,

739 N.E.2d 749 (2001).

{¶22} “Although a court of appeals may determine that a

judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is

against the weight of the evidence.” Thompkins, 78 Ohio St.3d

at 387. “The question to be answered when a manifest weight

issue is raised is whether ‘there is substantial evidence upon

which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt.’” State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting

State v. Getsy, 84 Ohio St.3d 180, 193–194, 702 N.E.2d 866

(1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132

(1978), syllabus. A court that is considering a manifest weight

challenge must “‘review the entire record, weigh the evidence

and all reasonable inferences, and consider the credibility of

witnesses.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-

493, 108 N.E.3d 1028, ¶ 208, quoting State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. The reviewing

court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 SCIOTO, 21CA3950 11

Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th

Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the

trier of fact sees and hears the witnesses and is particularly

competent to decide “whether, and to what extent, to credit the

testimony of particular witnesses,” we must afford substantial

deference to its determinations of credibility.’” Barberton v.

Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20,

quoting State v. Konya, 2d Dist. Montgomery No. 21434, 2006-

Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist. Montgomery No.

16288 (Aug. 22, 1997). As the Eastley court explained:

“‘[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * * If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’”

Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 60, at 191–192

(1978). Thus, an appellate court will leave the issues of

weight and credibility of the evidence to the fact finder, as

long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-

1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, SCIOTO, 21CA3950 12

2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier

of fact has some factual and rational basis for its

determination of credibility and weight.”).

{¶23} Accordingly, if the prosecution presented substantial

credible evidence upon which the trier of fact reasonably could

conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction

is not against the manifest weight of the evidence. E.g., Eley;

accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,

quoting Black’s Law Dictionary 1594 (6th ed.1990) (judgment not

against the manifest weight of evidence when “‘“the greater

amount of credible evidence”’” supports it). A court may

reverse a judgment of conviction only if it appears that the

fact-finder, when it resolved the conflicts in evidence,

“‘clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial

ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983);

accord McKelton at ¶ 328. A reviewing court should find a

conviction against the manifest weight of the evidence only in

the “‘exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins, 78 Ohio St.3d at 387,

quoting Martin, 20 Ohio App.3d at 175; accord State v. Clinton, SCIOTO, 21CA3950 13

153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State

v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

{¶24} In the case sub judice, R.C. 2911.12(A)(2) contains

the essential elements of appellant’s burglary offense:

(A) No person, by force, stealth, or deception, shall do any of the following: * * * * (2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense[.]

{¶25} Appellant disputes whether the state presented

sufficient evidence to show that he trespassed by force,

stealth, or deception. “Force” is defined as “any violence,

compulsion, or constraint physically exerted by any means upon

or against a person or thing.” R.C. 2901.01(A)(1). “[A]ny

effort physically exerted” satisfies the element of force.

State v. Johnson, 2d Dist. Montgomery No. 26961, 2017-Ohio-5498,

¶ 21, quoting State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-

175, 947 N.E.2d 1281, ¶ 18 (9th Dist.).

R.C. 2913.01(A) defines “deception” as

knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as SCIOTO, 21CA3950 14

to law, value, state of mind, or other objective or subjective fact.

{¶26} The Ohio Revised Code does not define “stealth.”

Courts have defined the term to mean “‘any secret, sly or

clandestine act to avoid discovery and to gain entrance into or

to remain within a residence of another without permission.’”

State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168 (3d

Dist.1993), quoting State v. Lane, 50 Ohio App.2d 41, 47, 4

O.O.3d 24, 361 N.E.2d 535 (10th Dist.1976).

{¶27} In the case before us, appellant contends that

entering an open garage during daylight while the homeowner

watches does not constitute trespass by force, stealth, or

deception. To support his argument, appellant cites State v.

Pullen, 2nd Dist. Greene No. 91CA33, 1992 WL 142271 (June 25,

1992), and State v. Patton, 2nd Dist. Clark No. 2011 CA 94,

2013-Ohio-961.

{¶28} The state, on the other hand, asserts that appellant

acted with stealth or deception by driving past the victim’s

house, turning around, parking to the side, exiting the vehicle,

and approaching the garage with a cavalier attitude. To support

its position, the state cites State v. Dowell, 166 Ohio App.3d

773, 2006-Ohio-2296, 853 N.E.2d 354, (8th Dist.), and State v.

Biddlecom, 8th Dist. Cuyahoga No. 76087, 2000 WL 354754 (Apr. 6, SCIOTO, 21CA3950 15

2000).

{¶29} We begin by considering Pullen and Patton. In Pullen,

the defendant was convicted of burglary for stealing a gas can

from an open garage. Before stealing the gas can, the defendant

parked his car in front of the homeowner’s unopened garage door,

exited the vehicle then entered the garage through a different,

opened garage door. The homeowner found the defendant exiting

the garage with a gas can in hand. After his conviction, the

defendant appealed and argued that the evidence failed to

establish that he trespassed by force, stealth, or deception.

The appellate court agreed:

[The defendant] parked his car in front of the unopened door to [the victim’s] garage, and entered [the victim’s] garage through the open door, after [the victim] had entered his home. The entry occurred in broad daylight. [The victim] did not observe [the defendant] enter the garage. There is no direct evidence of a secret, sly, or clandestine act to gain entrance, and in our judgment there is insufficient circumstantial evidence of a secret, sly, or clandestine act to gain entrance.

Id. at *2. The court thus rejected the state’s assertion that

the defendant’s entrance into the garage “was ‘stealthy’ in that

he obviously believed no one was looking, and that he could

enter and leave without being noticed.” Id. at *3. The court

stated that, even if the defendant “believed no one was looking,

this does not establish, even by reasonable inference, that his SCIOTO, 21CA3950 16

conduct in gaining entrance was secret, sly, or clandestine.”

Id. Instead, the court found it more significant that “the

incident occurred during daylight hours” and that the defendant

“parked his car outside the open garage.” Id. The court thus

reversed the defendant’s burglary conviction.

{¶30} In State v. Patton, 2nd Dist. Clark No. 2011 CA 94,

2013-Ohio-961, the defendant took a lawn mower from an open

garage and the homeowner’s son observed the defendant walk away

from the house with the mower. After the son “felt something

was wrong,” he looked in the garage and found his father’s lawn

mower missing. Id. at ¶ 8. The son then walked toward the

defendant and shouted, “Hey!” Id. The defendant then turned,

looked at the son, loaded the mower into the trunk of a vehicle

and fled.

{¶31} The defendant appealed his burglary conviction and

argued the state did not present sufficient evidence to

establish that he trespassed by force, stealth, or deception.

The appellate court agreed and noted that the open garage during

daylight hours and no one observed the defendant enter the

garage. The court explained:

There is no evidence—direct or circumstantial—that [the defendant] engaged in any secret, sly, or clandestine act to gain entrance to the [victims’] open garage, and nothing suggests that [the defendant] trespassed on the [victims’] property by force or SCIOTO, 21CA3950 17

deception.

Id. at ¶ 15. The court thus vacated the defendant’s burglary

conviction.

{¶32} In both Pullen and Patton, the courts concluded that

the absence of evidence to show the manner in which the

defendants entered the garages meant that the state failed to

present sufficient evidence to establish that the defendants

trespassed by force, stealth, or deception. The courts reasoned

that, without evidence to show how the defendants entered the

garage, no evidence existed from which a factfinder could find

that the defendants trespassed by force, stealth, or deception.

{¶33} When, however, the state presents some evidence to

show that a defendant entered or remained in a garage using

force, stealth, or deception, courts have found sufficient

evidence to establish that the defendant trespassed by force,

stealth, or deception. For example, in Dowell the homeowner

drove into his garage and remained in the car while he finished

a phone call. As he sat in the car, the homeowner observed a

vehicle pull into his driveway then back out. When the

homeowner observed the defendant enter the garage and reach for

a battery charger, the homeowner yelled and honked the horn. At

that point, the defendant ducked down on the other side of the

car. The homeowner became concerned that defendant remained in SCIOTO, 21CA3950 18

the garage so he backed out and continued to yell at the

defendant to leave. When the defendant approached the

homeowner’s vehicle and asked to speak with him, the homeowner

drove away and called the police.

{¶34} After the defendant’s burglary conviction, he argued

on appeal that the state did not present sufficient evidence to

show he trespassed by force, stealth, or deception. The

appellate court, however, disagreed and determined that the

defendant’s conduct in “ducking down was a secret, sly, or

clandestine act and that a rational jury could therefore

conclude that defendant used stealth to remain in the garage

without permission.” Id. at ¶ 20. The court thus affirmed the

defendant’s burglary conviction.

{¶35} In Biddlecom, the defendant argued that the state

failed to present sufficient evidence to establish that he

trespassed by force, stealth, or deception. In that case, the

defendant took a bicycle from an open garage when it was dark

outside and most household members asleep. The appellate court

concluded that entering an open garage “under cover of darkness”

sufficiently established that the defendant trespassed by

stealth. Id. at *5. The court also determined that “[a]

defendant’s demeanor and actions in appearing to have the

permission of the owner to enter a premises would qualify as SCIOTO, 21CA3950 19

deceptive conduct.” Id. (emphasis sic).

{¶36} In State v. Bolden, 5th Dist. Stark No. 2002-CA-00235,

2002-Ohio-6976, the defendant walked up and down a street,

glanced at garages and carried an item covered with a plastic

bag. The defendant later entered an open garage and the

homeowners observed him walk out of their garage. The defendant

then approached the homeowners’ vehicle, asked for help and also

stated that “he had come to steal things from a garage,” and

explained that someone had paid him to steal items from the

garage. The defendant then returned to the garage and used bolt

cutters to attempt to cut through a lock attached to a

lawnmower.

{¶37} After his burglary conviction, the defendant appealed

and asserted that the state did not present sufficient evidence

to establish that he trespassed by force, stealth, or deception.

The appellate court disagreed, however, and noted that the

evidence showed that the defendant did not simply walk into an

open garage during daylight hours, but instead illustrated that

the defendant had been looking for a garage he could easily

break into and that he had concealed bolt cutters inside a

plastic bag in order to avoid suspicion. The court determined

that this evidence sufficiently demonstrated that the defendant

acted with stealth. SCIOTO, 21CA3950 20

{¶38} In the case at bar, after our review we believe that

the state presented sufficient evidence that appellant

trespassed into the victim’s garage by stealth or deception. In

contrast to Pullen and Patton, in the case before us there is no

absence of evidence to show the manner in which appellant

entered the garage. Instead, similar to Dowell, Biddlecom, and

Bolden, the state presented evidence to show the manner in which

appellant entered the victim’s garage. Here, the evidence

adduced at trial shows that appellant drove his vehicle past the

victim’s house, turned around, parked off to the side of the

victim’s garage, exited the vehicle and walked into the victim’s

garage. The victim also observed appellant approach and

appellant smiled at the victim. Although the victim stated he

was unsure about appellant’s intentions, appellant’s smile and

cavalier attitude did not lead the victim to believe that

appellant intended to steal from the garage. The victim

explained that he thought appellant would have acted with more

urgency if appellant intended to steal from the garage. Thus,

the victim’s testimony shows that appellant’s attitude and

demeanor deceived the victim into believing that appellant did

not intend to trespass into the garage and steal the leaf

blower. See Biddlecom at *5 (“[a] defendant’s demeanor and

actions in appearing to have the permission of the owner to SCIOTO, 21CA3950 21

enter a premises would qualify as deceptive conduct.”).

Furthermore, appellant’s conduct could be construed as sly

behavior in an attempt to avoid the impression that he intended

to steal the leaf blower. Therefore, we believe that in the

case sub judice the state presented sufficient evidence to

establish that appellant trespassed by stealth or deception.

{¶39} Furthermore, we believe that the evidence adduced at

trial constitutes competent and credible evidence to establish,

beyond a reasonable doubt, that appellant trespassed by stealth

or deception. We are unable to conclude that appellant’s

conviction is against the manifest weight of the evidence and

the jury lost its way and committed a manifest miscarriage of

justice.

{¶40} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶41} In his second assignment of error, appellant asserts

that the trial court erred by overruling his Crim.R. 29(A)

motion for judgment of acquittal. Appellant claims that the

state failed to present sufficient evidence to support his

burglary conviction and the court should have granted his motion

for judgment of acquittal.

{¶42} Crim.R. 29(A) states as follows: SCIOTO, 21CA3950 22

(A) Motion for Judgment of Acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses.

“‘A motion for acquittal under Crim.R. 29(A) is governed by

the same standard as the one for determining whether a verdict

is supported by sufficient evidence.’” State v. Spaulding, 151

Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 164, quoting

State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d

386, ¶ 37. “The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt.” Jenks at

paragraph two of the syllabus.

{¶43} As we stated in our discussion of appellant’s first

assignment of error, however, we believe that the state

presented sufficient evidence to support appellant’s burglary

conviction. The trial court, therefore, did not err by

overruling appellant’s Crim.R. 29(A) motion for judgment of

acquittal.

{¶44} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error. SCIOTO, 21CA3950 23

III

{¶45} In his third assignment of error, appellant asserts

that the trial court abused its discretion by overruling his

motion for a mistrial (1) after the jury indicated it reached an

impasse, and (2) after the jury allegedly observed appellant’s

leg restraints, stun belt, and handcuffs.

{¶46} “A trial court must declare a mistrial only ‘when the

ends of justice so require and a fair trial is no longer

possible.’” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

45 N.E.3d 127, ¶ 198, quoting State v. Garner, 74 Ohio St.3d 49,

59, 656 N.E.2d 623 (1995); accord State v. Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 160 (“The granting

of a mistrial is necessary only when a fair trial is no longer

possible”). The decision whether to grant a mistrial lies in

the trial court’s discretion, and a reviewing court will not

reverse the trial court’s decision unless the court abused its

discretion. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190,

813 N.E.2d 637, ¶ 92; State v. Brown, 100 Ohio St.3d 51, 2003-

Ohio-5059, 796 N.E.2d 506, ¶ 42. An abuse of discretion is more

than an error of law or judgment; rather, it implies that the

court’s attitude was unreasonable, arbitrary or unconscionable.

E.g., State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108

N.E.3d 1, ¶ 60 citing Blakemore v. Blakemore, 5 Ohio St.3d 217, SCIOTO, 21CA3950 24

219, 450 N.E.2d 1140 (1983). An abuse of discretion includes a

situation in which a trial court did not engage in a “‘sound

reasoning process.’” State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990). Moreover, when reviewing for

an abuse of discretion, appellate courts must not substitute

their judgment for that of the trial court. E.g., State v.

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 187; In

re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181

(1991). Moreover, to establish that a trial court abused its

discretion by failing to grant a mistrial, a “defendant must

demonstrate material prejudice.” State v. Adams, 144 Ohio St.3d

429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198.

{¶47} In the case sub judice, after our review we do not

believe that the trial court’s denial of appellant’s motions for

a mistrial constitute an abuse of discretion. We first note

that a trial court need not declare a mistrial when a juror

declares during polling that the verdict is not the juror’s own

verdict. Instead, R.C. 2945.77 requires the jury to deliberate

further if a juror declares that the verdict is not his own.1

1 R.C. 2945.77 provides: SCIOTO, 21CA3950 25

Additionally, Crim.R. 31(D) allows a court to either direct

further deliberations or discharge the jury, if “there is not

unanimous concurrence” in the verdict.2 The statute and the rule

prevent a court from accepting the verdict only if the jurors do

not agree on the determination of guilt. See State v. Brumback,

109 Ohio App.3d 65, 73, 671 N.E.2d 1064, (9th Dist.1996),

quoting State v. Worthy, 10th Dist. Franklin No. 84AP–390, 1984

WL 5956, *2 (Oct. 25, 1984), quoting Annotation, Juror’s

Reluctant, Equivocal, or Conditional Assent to Verdict, 25 ALR

3d 1149, at 1151-1152 (“if the juror’s ‘”reluctance to assent is

so strong that it is extremely unlikely that he will ever

voluntarily agree,”’ it may discharge the jury and declare a

mistrial.”).

{¶48} In the case sub judice, when a juror initially

indicated she did not agree with the verdict, the trial court

Before the verdict is accepted, the jury may be polled at the request of either the prosecuting attorney or the defendant. If one of the jurors upon being polled declares that said verdict is not his verdict, the jury must further deliberate upon the case.

2 Crim.R. 31(D) states as follows:

When a verdict is returned and before it is accepted the jury shall be polled at the request of any party or upon the courts own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged. SCIOTO, 21CA3950 26

directed the jury to retire for further deliberation. Nothing

in the record suggests the trial court’s decision to direct the

jury to further deliberate rather than declaring a mistrial

constitutes an abuse of discretion. State v. Williams, 8th

Dist. Cuyahoga No. 83423, 2004-Ohio-5592, ¶ 29 (the “decision to

order the jury to continue deliberations is within the sound

discretion of the trial court”); e.g., State v. Brown, 100 Ohio

St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 44-46 (court did not

abuse its discretion by directing jurors to further deliberate

and noting that juror had not “expressed further reservation

about her verdict or about further deliberating”); State v.

Pippins, 2020-Ohio-503, 151 N.E.3d 1150, ¶ 26 (10th Dist.);

State v. Edge, 8th Dist. Cuyahoga No. 80919, 2003-Ohio-424, ¶

20-21; State v. Green, 67 Ohio App.3d 72, 77–78, 585 N.E.2d 990

(8th Dist.1990).

{¶49} Appellant next argues that the trial court abused its

discretion when it overruled his request for a mistrial after

the jury allegedly observed him in restraints. “‘In cases where

a defendant is inadvertently witnessed by members of the jury in

handcuffs or prison garb, there is a heavy burden on the

defendant to justify a mistrial.’” State v. Walls, 6th Dist.

Erie No. E-19-040, 2020-Ohio-5446, ¶ 12, quoting State v. James,

6th Dist. Lucas No. L-86-171, 1988 WL 38861 (Apr. 22, 1988), SCIOTO, 21CA3950 27

citing Dupont v. Hall, 555 F.2d 15 (1st Cir. 1977). “When a

jury’s view of the defendant in restraints is ‘brief,

inadvertent, and outside the courtroom,’ there is but a slight

risk of prejudice.” State v. Daboni, 4th Dist. Meigs No. 18CA3,

2018-Ohio-4155, ¶ 77, quoting State v. Kidder, 32 Ohio St.3d

279, 286, 513 N.E.2d 311 (1987); see State v. Halsell, 9th Dist.

Summit No. 24464, 2009-Ohio-4166, ¶ 9 (“Even assuming that

Defendant’s handcuffs were visible during the break in

proceedings and that jurors were in the immediate area, the

brief and inadvertent encounter outside the courtroom caused

minimal risk of prejudice to Defendant.”); State v. Flowers, 9th

Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 37 (finding that trial

court did not abuse its discretion by denying motion for

mistrial when two jurors’ view of the defendant in handcuffs

“was extremely brief, inadvertent, and outside the courtroom”).

“The ultimate question is the degree of prejudice, if any, which

such brief exposure caused.” State v. Chitwood, 83 Ohio App.3d

443, 448, 615 N.E.2d 257 (1st Dist.1992).

{¶50} In the case sub judice, after our review of the record

we do not believe the record affirmatively shows that any jurors

observed appellant in restraints. The trial court noted that

counsel table had modesty panels and that skirting and the court

did not believe that any juror observed appellant in restraints. SCIOTO, 21CA3950 28

Consequently, because the record does not indicate that any

juror actually observed appellant in restraints, appellant

cannot demonstrate any prejudicial error. See State v. Bonan,

3rd Dist. Crawford No. 3-92-33, 1992 WL 389999, *1 (Dec. 24,

1992) (no prejudicial error when record failed to indicate “that

any member of the jury ever observed [the defendant] wearing

restraints”); State v. Hastings, 4th Dist. Ross No. 1301, 1986

WL 14899, *3 (Dec. 23, 1986) (defendant failed to establish

prejudice when defendant “uncertain whether or not the jurors

saw him through an open door being unshackled in a room adjacent

to the courtroom”). Therefore, the trial court did not abuse

its discretion by overruling appellant’s motion for a mistrial.

{¶51} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error.

IV

{¶52} In his fourth assignment of error, appellant asserts

that the trial court imposed a sentence contrary to law. In

particular, appellant claims that his sentence “is not

commensurate with the seriousness of the conduct constituting

the offense” because his conduct does not justify eight years in

prison and that the trial court did not state sufficient reasons

to support its decision to impose the maximum sentence.

{¶53} When reviewing felony sentences, appellate courts SCIOTO, 21CA3950 29

apply the standard of review outlined in R.C. 2953.08(G)(2).

State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶

12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-

Ohio-1277, ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate

court’s standard for review is not whether the sentencing court

abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies

that an appellate court may increase, reduce, modify, or vacate

and remand a challenged felony sentence if the court clearly and

convincingly finds either:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law.

{¶54} A defendant bears the burden to establish, by clear

and convincing evidence, (1) that a sentence is either contrary

to law or (2) that the record does not support the specified

findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C.

2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 2929.20(I). State v.

Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48;

State v. Shankland, 4th Dist. Washington Nos. 18CA11 and 18CA12,

2019-Ohio-404, ¶ 20. “[C]lear and convincing evidence is that

measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not to the extent of such SCIOTO, 21CA3950 30

certainty as is required ‘beyond a reasonable doubt’ in criminal

cases, and which will produce in the mind of the trier of facts

a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

{¶55} We additionally observe that “[n]othing in R.C.

2953.08(G)(2) permits an appellate court to independently weigh

the evidence in the record and substitute its judgment for that

of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 163

Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42.

Furthermore, “an appellate court’s determination that the record

does not support a sentence does not equate to a determination

that the sentence is ‘otherwise contrary to law’ as that term is

used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Consequently,

appellate courts cannot review a felony sentence when “the

appellant’s sole contention is that the trial court improperly

considered the factors of R.C. 2929.11 or 2929.12 when

fashioning that sentence.” State v. Stenson, 6th Dist. Lucas

No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; accord

State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-

985, ¶ 13 (“In light of Jones, assigning error to the trial

court’s imposition of sentence as contrary to law based solely SCIOTO, 21CA3950 31

on its consideration of R.C. 2929.11 and 2929.12 is no longer

grounds for this court to find reversible error.”); State v.

Loy, 4th Dist. Washington No. 19CA21, 2021-Ohio-403, ¶ 30. We

also observe that “neither R.C. 2929.11 nor 2929.12 requires a

trial court to make any specific factual findings on the

record.” Jones at ¶ 20.

{¶56} In the case sub judice, appellant did not argue that

the record fails to support the findings under R.C. 2929.13(B),

R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), 2929.14(C)(4), or R.C.

2929.20(I). Instead, appellant asserts that his “sentence is

not commensurate with the seriousness of the conduct

constituting the offense” and that the record does not support

the court’s findings under R.C. 2929.11. Appellant thus claims

that his sentence is “contrary to law.”

{¶57} R.C. 2953.02(G)(2) does not, however, allow this court

to independently review the record to determine whether the

trial court chose an appropriate sentence based on the R.C.

2929.11 factors. See Jones, supra; State v. Hughes, 4th Dist.

Adams No. 21CA1127, 2021-Ohio-3127, ¶ 41 (“R.C. 2953.08(G)(2)

does not give appellate courts broad authority to review

sentences to determine if they are supported by the record”).

Therefore, we are unable to consider whether we believe the

record supports the trial court’s decision to impose an eight- SCIOTO, 21CA3950 32

year prison term.

{¶58} Furthermore, we find nothing in the record to suggest

that the trial court’s eight-year prison sentence is contrary to

law. Rather, R.C. 2929.14(A)(2)(a) authorizes trial courts to

impose an eight-year prison sentence for a second-degree felony

such as burglary. Appellant did not point to any other statute,

law, or rule that renders his sentence contrary to law. See

Jones at ¶ 34 (noting that when the legislature enacted R.C.

2953.08, “legal dictionaries defined ‘contrary to law’ as ‘in

violation of statute or legal regulations at a given time,’

e.g., Black’s Law Dictionary 328 (6th Ed.1990)”).

{¶59} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fourth assignment of error.

V

{¶60} In his fifth assignment of error, appellant asserts

that his trial counsel did not provide effective assistance of

counsel. In particular, appellant contends that trial counsel:

(1) failed to challenge a juror who stated that she had twice

been a burglary victim; (2) failed to present evidence; (3) made

statements adverse to appellant; and (4) failed to request a

curative instruction after the jury allegedly observed

appellant’s restraints.

A SCIOTO, 21CA3950 33

{¶61} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provides

that defendants in all criminal proceedings shall have the

assistance of counsel for their defense. The United States

Supreme Court has generally interpreted this provision to mean a

criminal defendant is entitled to the “reasonably effective

assistance” of counsel. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama,

571 U.S. 263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (the

Sixth Amendment right to counsel means “that defendants are

entitled to be represented by an attorney who meets at least a

minimal standard of competence”).

{¶62} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) his counsel’s

performance was deficient and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154

Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶

85. “Failure to establish either element is fatal to the

claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-

Ohio-968, ¶ 14. Therefore, if one element is dispositive, a

court need not analyze both. State v. Madrigal, 87 Ohio St.3d SCIOTO, 21CA3950 34

378, 389, 721 N.E.2d 52 (2000) (a defendant’s failure to satisfy

one of the ineffective-assistance-of-counsel elements “negates a

court’s need to consider the other”).

{¶63} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing professional

norms.’” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct.

1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at

688; accord Hinton, 571 U.S. at 273. Prevailing professional

norms dictate that “a lawyer must have ‘full authority to manage

the conduct of the trial.’” State v. Pasqualone, 121 Ohio St.3d

186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v.

Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798

(1988).

{¶64} Furthermore, “‘[i]n any case presenting an

ineffectiveness claim, “the performance inquiry must be whether

counsel’s assistance was reasonable considering all the

circumstances.”’” Hinton, 571 U.S. at 273, quoting Strickland,

466 U.S. at 688. Accordingly, “[i]n order to show deficient

performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d SCIOTO, 21CA3950 35

810, ¶ 95 (citations omitted).

{¶65} Moreover, when considering whether trial counsel’s

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. Thus, “the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id.

Additionally, “[a] properly licensed attorney is presumed to

execute his duties in an ethical and competent manner.” State

v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10,

citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel’s errors were “so

serious” that counsel failed to function “as the ‘counsel’

guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S.

at 687; e.g., State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153,

156, 524 N.E.2d 476 (1988).

{¶66} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to SCIOTO, 21CA3950 36

undermine the outcome.’” Hinton, 571 U.S. at 275, quoting

Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph

three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component

requires a “but for” analysis). “‘[T]he question is whether

there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’”

Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.

Furthermore, courts ordinarily may not simply presume the

existence of prejudice but, instead, must require a defendant to

affirmatively establish prejudice. State v. Clark, 4th Dist.

Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th

Dist. Ross No. 01CA2592 (Apr. 2, 2002); see generally Roe v.

Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d

985 (2008) (prejudice may be presumed in limited contexts, none

of which are relevant here).

{¶67} Additionally, we have repeatedly recognized that

speculation is insufficient to establish the prejudice component

of an ineffective assistance of counsel claim. E.g., State v.

Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34; State

v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; SCIOTO, 21CA3950 37

State v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890,

¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio-

1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-

Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (purely speculative

argument cannot serve as the basis for ineffectiveness claim).

B

{¶68} Appellant argues that trial counsel failed to

challenge a juror when the juror stated she twice had been a

victim of burglary and that she was unsure whether she could put

her experience aside and consider only the evidence presented in

the case.

{¶69} Generally, trial counsel’s decision regarding juror

selection constitutes a matter of trial strategy. State v.

Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 64.

“Few decisions at trial are as subjective or prone to individual attorney strategy as juror voir dire, where decisions are often made on the basis of intangible factors.” Miller v. Francis (C.A.6, 2001), 269 F.3d 609, 620. “The selection of a jury is inevitably a call upon experience and intuition. The trial lawyer must draw upon his own insights and empathetic abilities. Written records give us only shadows for measuring the quality of such efforts. * * * [T]he selection process is more an art than a science, and more about people than about rules.” Romero v. Lynaugh (C.A.5, 1989), 884 F.2d 871, 878.

Id. For these reasons, appellate courts ordinarily will “not SCIOTO, 21CA3950 38

second-guess trial strategy decisions such as those made by

counsel during voir dire.” State v. Hall, 11th Dist. Lake Nos.

2019-L-027 and 031, 2019-Ohio-4000, ¶ 28; accord Mundt at ¶ 63,

quoting State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932

(1998) (courts “have consistently declined to ‘second-guess

trial strategy decisions’ or impose ‘hindsight views about how

current counsel might have voir dired the jury differently’”).

Additionally, “because the use of peremptory challenges is

inherently subjective and intuitive, an appellate record will

rarely disclose reversible incompetence in this process.” Mundt

at ¶ 83.

{¶70} In the case sub judice, appellant’s counsel considered

whether to challenge the juror and counsel explained his

process:

I’m wondering about that. It’s–obviously someone who’s been a victim of burglary twice–he’s got justice though and I feel that this would probably be–well, I shouldn’t be saying that, but as far as cause I–if I want to get rid of her I think I’d have to use peremptories.

Counsel then asked appellant if appellant thought that counsel

should leave the juror on the jury. Appellant stated: “I feel

like she knows the – she knows what the charge is so she would

be able to help my case in understanding that it’s not a

burglary.” Counsel responded: SCIOTO, 21CA3950 39

Well, it’s your life. You’re relying on that. The other side of that is that she could be someone that–say listen, I’ve got a burglary, I don’t think this guy was punished enough because burglar’s don’t get caught enough, if this guy’s a burglar I want him punished.

Appellant responded that he believed “she’s capable” and that

“she’d be a good candidate.” Appellant then stated his desire

to leave her on the jury.

{¶71} In view of the fact that appellant explicitly opted to

leave the juror on the jury, we are unable to conclude that

trial counsel, abiding by appellant’s request, acted

unreasonably. Rather than choosing to remove the juror from the

panel, appellant specifically informed trial counsel that

appellant thought that the juror would “be a good candidate” and

stated that counsel should not remove the juror. Thus, in view

of this information appellant invited any error that may have

possibly occurred. The invited-error doctrine precludes a

litigant from “‘tak[ing] advantage of an error which [the

litigant] invited or induced.’” State v. Ford, 158 Ohio St.3d

139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 279, quoting Hal Artz

Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div.,

28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the

syllabus. The doctrine generally applies “‘when a party has

asked the court to take some action later claimed to be SCIOTO, 21CA3950 40

erroneous, or affirmatively consented to a procedure the trial

judge proposed.’” Id., quoting State v. Campbell, 90 Ohio St.3d

320, 324, 738 N.E.2d 1178 (2000). In the criminal context, the

doctrine prevents a defendant from making “‘an affirmative * * *

decision at trial and then complain[ing] on appeal that the

result of that decision constitutes reversible error.’” State

v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7,

quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th

Cir. 2003); accord State v. Brunner, 4th Dist. Scioto No.

18CA3848, 2019-Ohio-3410, ¶ 15.

{¶72} Therefore, after our review of the record we do not

believe that appellant established that trial counsel, when

counsel acted in accordance with appellant’s wishes, provided

ineffective legal assistance.

C

{¶73} Appellant next claims that trial counsel’s failure to

present evidence constitutes ineffective assistance of counsel.

In particular, appellant asserts that he advised the court

during the final pretrial that appellant had evidence to present

in his defense, but that his counsel failed to present any

evidence whatsoever during trial.

{¶74} Our review of the transcript reveals that appellant

did claim to have evidence to support a defense, and that the SCIOTO, 21CA3950 41

trial court explicitly informed appellant that he would need to

gather and provide evidence to defense counsel. However,

nothing in the record shows that before trial, appellant

gathered any evidence or provided evidence to counsel.

{¶75} Therefore, we are unable to conclude that trial

counsel acted unreasonably by failing to present evidence that

appellant claimed to possess, but did not provide to counsel.

D

{¶76} Appellant next asserts that trial counsel’s adverse

statements constitute ineffective performance. Appellant

complains that trial counsel made a statement during a bench

conference that appellant was “mad that I didn’t ask a thousand

irrelevant questions.” Appellant asserts that counsel made

another disparaging remark when he cross-examined the victim and

asked “Well you’re in a pretty safe area to leave [the garage

door] open, wouldn’t you say?” Counsel then offered his remark

that, “It turned out after this case not so.” Appellant

contends that counsel’s statements are inherently prejudicial.

{¶77} After our review, we do not agree with appellant that

trial counsel’s above-referenced comments constitute ineffective

assistance of counsel. Even if we may agree that the statements

could be viewed as professionally unreasonable, appellant cannot

demonstrate that the statements affected the outcome of the SCIOTO, 21CA3950 42

proceedings. Nothing suggests that the jury returned a guilty

verdict based upon counsel’s remark to the victim about the area

being safe or unsafe. Moreover, the other comment occurred

during a bench conference and appellant did not establish that

the jury heard the comment, or that the comment had any effect

on the outcome of the proceedings.

E

{¶78} Appellant also asserts that trial counsel’s failure to

ask the court to give the jury a curative instruction after the

jury allegedly observed appellant in restraints constitutes

ineffective assistance of counsel. We do not agree.

{¶79} After trial counsel raised the concern that the jurors

observed appellant in restraints, the trial court asked counsel

if he wanted the court to give the jury a curative instruction.

Counsel, however, expressed concern that if the jurors had not

noticed the restraints, as the court and prosecutor believed,

then an instruction may draw attention to the restraints.

Counsel thus stated that any curative instruction would not be

sufficient (and he would rather the court grant a mistrial).

{¶80} After our review of the record, we believe that

counsel made a strategic decision not to request a curative

instruction. If the jury did not actually notice the

restraints, a curative instruction could draw unnecessary SCIOTO, 21CA3950 43

attention to the restraints. Therefore, counsel could have

reasonably decided that better strategy dictated foregoing a

curative instruction rather than unnecessarily drawing attention

to the restraints.

{¶81} Furthermore, even if counsel acted unreasonably by

failing to ask the court to issue a curative instruction,

appellant cannot establish that counsel’s decision affected the

outcome of the proceedings. As we noted earlier in our

decision, the record does not clearly reveal that the jury

actually observed appellant in restraints. The trial court

noted that the table had a modesty panel and the court did not

believe the jury observed appellant in restraints. In light of

this uncertainty, appellant cannot establish prejudice. See

Hastings, supra, at *3 (defendant failed to establish prejudice

when defendant “uncertain whether or not the jurors saw him

through an open door being unshackled in a room adjacent to the

courtroom”). Therefore, based upon the foregoing reasons, we do

not believe that appellant’s trial counsel failed to provide

appellant effective assistance of counsel.

{¶82} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fifth assignment of error.

VI

{¶83} In his sixth assignment of error, appellant asserts SCIOTO, 21CA3950 44

that the cumulative effect of the errors that occurred during

the trial court proceedings deprived him of his right to a fair

trial.

{¶84} The cumulative error doctrine states that a conviction

will be reversed if the cumulative effect of all the errors in a

trial deprive a defendant of the constitutional right to a fair

trial, even though each alleged instance of error may not

individually constitute cause for reversal. State v. Powell,

132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223,

citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256

(1987), paragraph two of the syllabus.

{¶85} In the case sub judice, however, we have not found

merit to appellant’s assignments of error. Thus, the cumulative

error doctrine does not apply under these circumstances. State

v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶

143, citing Powell at ¶ 223. Therefore, appellant’s sixth

assignment of error is without merit.

{¶86} Accordingly, based upon the foregoing reasons, we

overrule appellant’s sixth assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that SCIOTO, 21CA3950 45

appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period.

The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

_____________________________ BY: Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.