[Cite as State v. Melendez, 2025-Ohio-1972.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO, CASE NO. 9-24-34 PLAINTIFF-APPELLEE,
V.
HIRAM MELENDEZ, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court Trial Court No. 19-CR-524
Judgment Affirmed
Date of Decision: June 2, 2025
APPEARANCES:
Allison M. Kesler for Appellant
April F. Campbell for Appellee Case No. 9-24-34
ZIMMERMAN, J.
{¶1} Defendant-appellant, Hiram Melendez (“Melendez”), appeals the July
19, 2024 judgment entry of sentence of the Marion County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case originated from an incident where Melendez, an inmate at the
Marion Correctional Institution, was accused of assaulting a correctional officer.
On December 11, 2019, the Marion County Grand Jury indicted Melendez on Count
One of felonious assault in violation of R.C. 2909.11(A)(1), a second-degree felony,
and Count Two of assault in violation of R.C. 2903.13(A), (C)(3), a third-degree
felony. The indictment included a repeat violent offender specification as to Count
One. Melendez appeared for arraignment on October 8, 2020 and pleaded not guilty
to the indictment.
{¶3} In response to Melendez’s March 11, 2021 motion contesting his
competency to stand trial under R.C. 2945.37, the trial court ordered a competency
evaluation of Melendez in accordance with R.C. 2945.371 on March 12, 2021.1
{¶4} However, because Melendez refused to participate in the competency
evaluation, which could therefore not be completed, the trial court committed
1 R.C. 2945.371 was amended in August 2021; however, the trial court proceeded under the version of the statute in effect at the time that Melendez committed the offenses at issue in this case. See R.C. 2945.371(G)(3), (4) (2016) (current version at R.C. 2945.371(H)(3), (4) (2021)). Accordingly, this court will address the version of the statute in effect at the time Melendez committed the offenses at issue in this case.
-2- Case No. 9-24-34
Melendez to Twin Valley Behavioral Healthcare (not to exceed 20 days for
evaluation) on June 16, 2021 in order to complete the evaluation.
{¶5} On October 14, 2021, Melendez entered a written plea of not guilty by
reason of insanity. Consequently, the trial court ordered a competency evaluation
of Melendez in relation to his not guilty by reason of insanity plea. However, the
trial court later determined such evaluation was not necessary and it was cancelled
on November 2, 2021.
{¶6} The record reflects that competency hearings were scheduled on
November 18 and December 21, 2021, and January 21, 2022, with additional
competency evaluation orders filed on March 8, 2022 (regarding competency to
stand trial), March 29, 2022 (regarding the not guilty by reason of insanity plea),
and April 1, 2022 (regarding both), but the record is void of the outcome of any of
these hearings or orders. Nonetheless, after a competency hearing on July 29, 2022,
the trial court concluded that Melendez was competent to stand trial.
{¶7} The case proceeded to a jury trial on February 27, 2023, but Melendez
was removed from the courtroom prior to voir dire because of his interruptive
behavior. Following empaneling of the jury, the trial court sought to determine if
Melendez could return to the courtroom without being interruptive. Because he
could not maintain his behavior, the trial court found Melendez incompetent to stand
trial and declared a mistrial based on his incompetence to stand trial.
-3- Case No. 9-24-34
{¶8} Subsequently, the trial court ordered a competency evaluation on March
6, 2023. However, because he had not yet been evaluated, Melendez filed a motion
on June 9, 2023 requesting that the competency hearing scheduled for June 22, 2023
be rescheduled. The trial court granted Melendez’s request and rescheduled the
competency hearing for November 2, 2023.2 Though the record reflects that a
competency restoration hearing was scheduled for April 15, 2024, there is no
evidence in the record regarding such hearing.
{¶9} Ultimately, the case proceeded to a jury trial on July 16, 2024 and the
jury found Melendez guilty of Count Two. The trial court granted Melendez’s
Crim.R. 29 motion as to Count One and dismissed that count. The trial court
sentenced Melendez to 36 months in prison and ordered that he serve the sentence
consecutively to the sentence he was already serving.3
{¶10} Melendez filed his notice of appeal on July 31, 2024. He raises four
assignments of error for our review. For ease of our discussion, we will begin by
addressing Melendez’s first and third assignments of error together, followed by his
second and fourth assignments of error.
First Assignment of Error
Melendez’s conviction should be reversed because the trial court failed to record or hold a competency and restoration hearing before trial after deeming Melendez not competent.
2 The transport order for the November 2, 2023 competency hearing, which was filed on August 23, 2023, reflects that Melendez was incarcerated at that time. 3 The trial court filed its judgment entry of sentence on July 19, 2024.
-4- Case No. 9-24-34
Third Assignment of Error
The court erred in not ordering a competency evaluation after Melendez demonstrated a lack of competence during his second trial.
{¶11} In his first, and third assignments of error, Melendez argues that his
conviction must be reversed because he was not competent to stand trial. In
particular, Melendez contends in his first assignment of error that the trial court
failed to record or hold a competency hearing before his trial, after he had been
deemed not competent to stand trial. Melendez specifically argues in his third
assignment of error that the trial court erred by failing to conduct a competency
evaluation after he demonstrated a lack of competence during his second trial.
Standard of Review
{¶12} A trial court’s decision on a defendant’s competency to stand trial will
not be disturbed absent an abuse of discretion. State v. Sims, 2022-Ohio-3365, ¶ 12
(3d Dist.). An abuse of discretion is more than a mere error in judgment; it suggests
that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62
Ohio St.2d 151, 157-158 (1980).
Analysis
{¶13} Due process requires that a criminal defendant must be competent to
stand trial. Sims at ¶ 14. It has long been accepted that a person cannot be subjected
to a trial if they lack certain capacities. Id. Specifically, a defendant must be able
-5- Case No. 9-24-34
to understand the nature and object of the proceedings, consult with counsel, and
assist in preparing their defense. Id. Thus, convicting an accused while he or she
is considered to be legally incompetent violates the accused’s due-process rights.
Id.
{¶14} The United States Supreme Court set the standard for competency,
requiring trial courts to determine if an accused possesses a “sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding” and “a rational as well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402 (1960). See also State v.
Lawson, 2021-Ohio-3566, ¶ 50 (recognizing the application in Ohio of the
competency test announced in Dusky). Ohio codified this competency test under
R.C. 2945.37, which provides, in its relevant part:
A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant’s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.
R.C. 2945.37(G).
{¶15} “Therefore, if a defendant is capable of understanding the nature and
objective of the proceedings and assisting in the defense, then the defendant is
competent to stand trial.” State v. Heatherington, 2022-Ohio-1375, ¶ 37 (5th Dist.).
-6- Case No. 9-24-34
“A defendant with mental illness or intellectual deficiencies may still be competent
to stand trial.” State v. Lechner, 2019-Ohio-4071, ¶ 27 (4th Dist.). “‘Incompetency
must not be equated with mere mental or emotional instability or even with outright
insanity. A defendant may be emotionally disturbed or even psychotic and still be
capable of understanding the charges against him and of assisting his counsel.’” Id.,
quoting State v. Bock, 28 Ohio St.3d 108, 110 (1986).
{¶16} “‘A criminal defendant’s competency to stand trial . . . is a question of
fact.’” State v. Stutzman, 2019-Ohio-1695, ¶ 13 (9th Dist.), quoting State v. Roberts,
2013-Ohio-4580, ¶ 92. “Deference, therefore, generally ought to be afforded to a
trial court’s competency determination, as ‘factual determinations are best left to
those who see and hear what goes on in the courtroom.’” Id., quoting State v.
Cowans, 87 Ohio St.3d 68, 84 (1999). See also State v. Shepherd, 2009-Ohio-3317,
¶ 9 (3d Dist.) (“When reviewing the trial court’s decision on whether to conduct a
competency hearing sua sponte, an appellate court should give deference to the trial
court since it was able to see and hear what transpired in the courtroom.”). Thus,
“an appellate court will not overrule the trial court’s competency determination if
the record contains credible, reliable evidence in support of the trial court’s
determination that the defendant understood the nature and objective of the
proceedings against him.” Heatherington at ¶ 33. See also Stutzman at ¶ 13 (“A
trial court’s competency findings ‘will not be disturbed when there is some reliable
-7- Case No. 9-24-34
and credible evidence supporting those findings.’”), quoting State v. Were, 2008-
Ohio-2762, ¶ 46.
{¶17} In his first assignment of error, Melendez argues that the trial court’s
failure to record or hold a competency hearing before his trial, after he had been
deemed not competent to stand trial, warrants reversal of his conviction. “If the
issue of competency is raised prior to trial, the court shall hold a hearing on the
matter.” State v. Vanmeter, 2024-Ohio-1458, ¶ 17 (9th Dist.), citing R.C.
2945.37(B). “The purpose of the hearing is to provide the defendant with an
opportunity to rebut the competency presumption.” Id., citing State v. Mills, 2023-
Ohio-4716, ¶ 12, citing R.C. 2945.37(G). “A competency hearing pursuant to R.C.
2945.37(B), however, is waivable.” Id.
{¶18} “If the issue of competency is raised before trial and remains at issue,
the ‘failure to hold a mandatory competency hearing is not a basis for automatic
reversal.’” Id. at ¶ 18, quoting Mills at ¶ 14. “Rather, ‘the failure to hold a
mandatory competency hearing is harmless error where the record fails to reveal
sufficient indicia of incompetency.’” Id., quoting Mills at ¶ 14. Importantly, “[a]
reviewing court ‘must consider “the totality of the evidence,” including “both
evidence of incompetency and evidence of competency,” to determine whether the
trial court’s failure to hold a competency hearing was harmless.’” Id. at ¶ 19,
-8- Case No. 9-24-34
quoting Mills at ¶ 21, quoting State v. Hough, 2022-Ohio-4436, ¶ 59 (Kennedy, J.,
dissenting).
{¶19} In this case, the record reflects that Melendez was deemed
incompetent to stand trial following his first trial on February 27, 2023. Yet, despite
this determination of incompetency, the record contains no evidence that the trial
court held a competency restoration hearing before the case went to a jury trial on
July 16, 2024. Importantly, even though a competency restoration hearing was
scheduled for April 15, 2024, there is no evidence in the record that it took place or
that the court issued an order restoring Melendez’s competency.
{¶20} The trial court’s failure to hold and properly record a competency
restoration hearing constitutes error. However, based on our review of the record,
we conclude that this error was harmless because the record lacks sufficient indicia
of Melendez’s incompetency. Accord State v. Bayman, 2024-Ohio-5405, ¶ 50 (2d
Dist.). Indeed, our review of the totality of the evidence available in the record
reveals that Melendez’s actions demonstrated his capability of understanding the
nature and objective of the proceedings and assisting in his defense. In particular,
during jury selection, Melendez attempted to participate by discussing facts and
legal concepts like parole and a suppression motion, thus demonstrating his
awareness of his case. Moreover, even his outbursts, where Melendez claimed his
attorney was ineffective and discussed his right to appeal, suggest a degree of
-9- Case No. 9-24-34
comprehension of legal processes. Compare id. at ¶ 51-52 (analyzing Bayman’s
conduct and determining that his understanding of the legal process did not mean
he was incompetent to stand trial). Thus, based on our review of the totality of the
facts and circumstances, we conclude that the trial court’s failure to conduct the
competency restoration hearing was harmless. Accord id. at ¶ 55.
{¶21} Accordingly, Melendez’s first assignment of error is overruled.
{¶22} Turning to his third assignment of error, Melendez argues that the trial
court abused its discretion by failing to sua sponte order a competency evaluation
because he had been deemed incompetent prior to the second trial (without a
subsequent restoration order) and his outbursts during the second trial, which led to
his removal, were like those that initially established his incompetence. The State
counters that, despite Melendez’s outbursts during his second trial, his conduct did
not demonstrate incompetency to stand trial, meaning his demeanor did not show
an inability to understand the charges against him or to assist his counsel.
{¶23} The authority and obligations of a trial court regarding a defendant’s
competence to stand trial are defined in R.C. 2945.37(B). That statute provides, in
its relevant part, that
[i]n a criminal action in a court of common pleas, . . . the court, prosecutor, or defense may raise the issue of the defendant’s competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the
-10- Case No. 9-24-34
court shall hold a hearing on the issue only for good cause shown or on the court’s own motion.
R.C. 2945.37(B). In assessing whether to order such a hearing, the trial court should
consider “‘(1) doubts expressed by counsel as to the defendant’s competence, (2)
evidence of irrational behavior, (3) the defendant’s demeanor at trial, and (4) prior
medical opinion relating to competence to stand trial.’” State v. Hartman, 2007-
Ohio-6555, ¶ 15 (3d Dist.), quoting State v. Rubenstein, 40 Ohio App.3d 57, 60-61
(8th Dist. 1987).
{¶24} After reviewing the record, we conclude that the trial court did not
abuse its discretion by failing to sua sponte order a competency evaluation of
Melendez. Decisively, the facts of this case do not present sufficient indicia of
Melendez’s incompetence. Accord State v. Swoveland, 2018-Ohio-2875, ¶ 31 (3d
Dist.). Indeed, for the same reasons that rendered the trial court’s failure to conduct
a competency restoration hearing harmless error—namely, that the record lacks
evidence that Melendez had an impaired ability to understand the proceedings or
assist his attorney—the trial court’s decision not to sua sponte order a competency
evaluation was not unreasonable, arbitrary, or unconscionable.
{¶25} Therefore, Melendez’s third assignment of error is overruled.
Second Assignment of Error
Melendez’s charges should have been dismissed because he was required to undergo treatment outside the time period set forth in R.C. 2945.38(C).
-11- Case No. 9-24-34
{¶26} In his second assignment of error, Melendez contends that his charges
should have been dismissed because he was required to undergo treatment for a
period exceeding the time limit set forth in R.C. 2945.38(C). He specifies that
because the highest degree offense he faced was a second-degree felony, the
permissible time for treatment and evaluation was one year, and that limit was
surpassed.
{¶27} Generally, this court reviews “a trial court’s decision on a motion to
dismiss an indictment for abuse of discretion.” State v. Hudson, 2022-Ohio-1435,
¶ 19. As we previously stated, an abuse of discretion suggests that a decision is
unreasonable, arbitrary, or unconscionable. Adams, 62 Ohio St.2d at 157-158.
{¶28} However, because Melendez did not object or move to dismiss the
indictment, he has waived all but plain error on appeal. Accord State v. Leonard,
2024-Ohio-2817, ¶ 11 (1st Dist.); State v. Buford, 2008-Ohio-5505, ¶ 11 (6th Dist.)
(noting that “a plain-error analysis applies to challenges of defective indictments
first raised on appeal”). Under “‘Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.”’” State v. Harrison, 2015-Ohio-1419, ¶ 69 (3d Dist.), quoting State v.
Walburg, 2011-Ohio-4762, ¶ 47 (10th Dist.), quoting Crim.R. 52(B). “We
recognize plain error with the utmost caution, under exceptional circumstances, and
-12- Case No. 9-24-34
only to prevent a manifest miscarriage of justice.” Id. “‘For plain error to apply,
the trial court must have deviated from a legal rule, the error must have been an
obvious defect in the proceeding, and the error must have affected a substantial
right.’” Id., quoting State v. Vielma, 2012-Ohio-875, ¶ 34 (3d Dist.). “‘Under the
plain error standard, the appellant must demonstrate that the outcome of his trial
would clearly have been different but for the trial court’s errors.’” Id., quoting
Vielma at ¶ 34.
{¶29} R.C. 2945.38 provides, in its relevant part, that where a defendant is
found incompetent to stand trial and “there is a substantial probability that the
defendant will become competent to stand trial within one year if the defendant is
provided with a course of treatment, the court shall order the defendant to undergo
treatment.” R.C. 2945.38(B)(1)(a). However, the statute specifies that a defendant
cannot be required to undergo treatment or evaluation for more than one year if the
most serious charge against them is a first or second-degree felony. R.C.
2945.38(C)(1)(b).
{¶30} If the maximum time for treatment to restore the defendant’s
competency expires, or if the defendant is unlikely to become competent within the
treatment timeframe under R.C. 2945.38(C), the indictment should be dismissed and
the defendant discharged, unless the court or prosecutor seeks civil commitment of
-13- Case No. 9-24-34
the defendant. State v. Hudkins, 2022-Ohio-249, ¶ 19 (12th Dist.). However, a
defendant’s actions can prevent the statutory time period under R.C. 2945.38 from
running, which effectively tolls that period to prevent the defendant from benefitting
from their own delaying actions, thus depriving the State of the opportunity to have
the defendant’s competence restored. State v. Barker, 2007-Ohio-4612, ¶ 13 (2d
Dist.).
{¶31} In this case, Melendez contends that the indictment against him should
have been dismissed because he was committed for treatment for longer than the
one-year period provided by R.C. 2945.38(C)(1)(b). In support of his argument that
his extended treatment violated statutory limits, Melendez points to the timeline of
his competency evaluations and treatment. Specifically, Melendez contends that he
was committed for treatment on June 16, 2021, and found competent on August 12,
2022. He further asserts that he was then found incompetent to stand trial during
his first trial on February 27, 2023, and a competency restoration hearing did not
occur until at least April 15, 2024. The State disputes Melendez’s argument and
contends that there is nothing in the record to demonstrate that he was undergoing
continued treatment or continued evaluations for over one year.
{¶32} We conclude that the trial court’s failure to dismiss Melendez’s
indictment was not plain error. Indeed, based on our review of the record, it is
-14- Case No. 9-24-34
evident that Melendez did not undergo treatment within the meaning of R.C.
2945.38 for longer than one year. See Barker at ¶ 10.
{¶33} Critically, regarding the period between June 16, 2021 and August 12,
2022, Melendez, while subject to court-ordered competency evaluations, was not
being held for competency restoration as the court had not yet found him
incompetent. That is, the competency evaluations during this time period, requested
by Melendez, aimed to assess his competency to stand trial and his sanity at the time
of the offense (following his plea of not guilty by reason of insanity), not to provide
treatment within the statute’s meaning. Consequently, R.C. 2945.38(C)(1)(b)’s
time constraint is inapplicable to that time period.
{¶34} Moreover, the time period between the time Melendez was declared
incompetent to stand trial after his first trial on February 27, 2023 and the
competency restoration hearing on April 15, 2024 did violate the time constraints
of R.C. 2945.38(C)(1)(b). Though said time period appears facially violative of the
statute, the record reflects that Melendez’s actions requesting that a June 22, 2023
competency restoration hearing be rescheduled until November 1, 2023 tolled the
one-year period. See Barker at ¶ 14 (determining that Barker’s “actions tolled the
one-year period”).
{¶35} Moreover, even if the trial court erred by failing to dismiss Melendez’s
indictment for exceeding the one-year treatment period, such a dismissal would
-15- Case No. 9-24-34
have been without prejudice, allowing the State to refile the same charges. See State
v. Hudkins, 2022-Ohio-249, ¶ 15 (12th Dist.) (“If the court orders a dismissal
because the maximum time for treatment has expired, the dismissal ‘is not a bar to
further prosecution based on the same conduct.’”), quoting R.C. 2945.38(H)(4).
Therefore, since the State could have refiled the indictment, Melendez cannot show
that the result of his trial would have been different had the indictment been initially
dismissed. As a result, any error in the failure to dismiss is ultimately harmless to
Melendez’s substantial rights.
{¶36} For these reasons, the trial court’s failure to dismiss the indictment did
not constitute plain error in this case.
{¶37} Melendez’s second assignment of error is overruled.
Fourth Assignment of Error
Defense counsel was prejudicially ineffective: He did not request a competency evaluation. He did not move for mistrial. He did not ask for curative instructions. He did not move for discharge under the competency statutes.
{¶38} In his fourth assignment of error, Melendez argues his trial counsel
was ineffective for failing to file a motion to dismiss the indictment for violating the
one-year period under R.C. 2945.38(C), challenge his competency to stand trial, and
move for a mistrial or request a curative instruction at his second trial despite his
repeated disruptions.
-16- Case No. 9-24-34
{¶39} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687 (1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 687. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the
errors complained of must amount to a substantial violation of counsel’s essential
duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989),
quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other
grounds, 438 U.S. 910 (1978).
{¶40} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 2014-Ohio-259, ¶ 48 (3d Dist.), quoting Bradley at 142,
-17- Case No. 9-24-34
citing Strickland at 691. “‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id., quoting Bradley at 142 and citing
Strickland at 694.
{¶41} On appeal, Melendez argues that his trial counsel was ineffective for
failing to file a motion to dismiss the indictment for violating the one-year period
under R.C. 2945.38, challenge his competency to stand trial, and move for a mistrial
or request a curative instruction at his second trial despite his repeated disruptions.
However, based on our resolution of Melendez’s second and third assignments of
error, his trial counsel was not ineffective for failing to file a motion to dismiss the
indictment for violating the one-year period under R.C. 2945.38 or for failing to
challenge his competency to stand trial. See State v. Vanmeter, 2024-Ohio-1458, ¶
28 (9th Dist.). That is, based on the resolution of those assignments of error,
Melendez cannot demonstrate that the outcome of the proceedings would have been
different.
{¶42} Furthermore, Melendez’s counsel was not ineffective for failing to
move for a mistrial or request a curative instruction at his second trial despite his
repeated disruptions. To argue ineffective assistance of counsel based on an
attorney’s failure to move for a mistrial, an appellant must demonstrate that the trial
court probably would have been compelled to declare a mistrial. State v. Seiber, 56
-18- Case No. 9-24-34
Ohio St.3d 4, 12 (1990). A mistrial should not be ordered in a criminal case simply
because a minor error or procedural irregularity has occurred. State v. Jones, 2014-
Ohio-674, ¶ 19 (10th Dist.). Rather, “[m]istrials should only be declared when the
ends of justice so require and a fair trial is no longer possible.” State v. Raypole,
2015-Ohio-827, ¶ 27 (12th Dist.). “The decision to move or not move for a mistrial
is a tactical decision that falls within the range of competent assistance of trial
counsel.” Id.
{¶43} Our review of the record reveals no evidence that the trial court would
have declared a mistrial in this case. Indeed, Melendez has not provided any
evidence to support his claim that such a request would have been granted; he
merely argues that, because the trial court granted a mistrial during his first trial due
to his outbursts, it would have done the same in this instance. Furthermore, as we
previously addressed, there was insufficient indicia of his incompetency presented
during his second trial. Consequently, Melendez cannot demonstrate that the
outcome of the proceedings would have been different had his trial counsel moved
for a mistrial. State v. Scales, 2024-Ohio-2171, ¶ 41 (8th Dist.).
{¶44} Curative instructions are presumed to be an effective way to remedy
errors during a trial. State v. Houdeshell, 2018-Ohio-5217, ¶ 50 (3d Dist.).
Critically, “‘[a] jury is presumed to follow and comply with instructions given by
the trial court.’” Id., quoting State v. Palmer, 2014-Ohio-5491, ¶ 26 (12th Dist.).
-19- Case No. 9-24-34
Generally, the decision of counsel not to request a curative instruction falls within
the realm of trial strategy, and debatable trial tactics and strategies are not
considered ineffective assistance of trial counsel. State v. Conway, 2006-Ohio-
2815, ¶ 111. Indeed, trial counsel may choose to avoid seeking a curative instruction
regarding potentially prejudicial evidence for tactical reasons, such as the concern
that the instruction might draw more attention to the evidence and reinforce jurors’
prejudice. Scales at ¶ 38.
{¶45} In this case, we conclude that Melendez failed to demonstrate that his
trial counsel’s decision to forgo requesting a curative instruction was an
unreasonable trial strategy or prejudicial. Critically, not only was Melendez’s trial
counsel’s decision a matter of trial strategy, but Melendez also failed to indicate
what specific curative instruction should have been provided or explain how such
an instruction would have remedied any errors. Accord State v. Welninski, 2018-
Ohio-778, ¶ 73-74 (6th Dist.) (concluding that trial counsel’s “decision-making as
to whether to seek a curative instruction falls within the ambit of trial strategy” and
that Welninski failed to “articulate what the curative instruction should have been,
or how such an instruction would have cured the impact of his outburst”); Conway
at ¶ 111. This is particularly significant given the trial court’s general instructions
to the jury on evidence consideration, which the record does not show the jury
disregarded.
-20- Case No. 9-24-34
{¶46} Nevertheless, even if we were to assume without deciding that
Melendez’s trial counsel provided ineffective assistance by failing to move for a
mistrial or request a curative instruction, Melendez himself invited that error and
any resulting prejudice. Accord Welninski at ¶ 74. “‘Under the invited-error
doctrine, a party will not be permitted to take advantage of an error which he himself
invited or induced the trial court to make.’” Id., quoting State ex rel. Bitter v. Missig,
72 Ohio St.3d 249, 254 (1955). Therefore, the invited error doctrine precludes
Melendez from claiming prejudice caused by his own “‘outbursts and
interruptions.’” Id., quoting State v. Gonzalez, 1998 WL 823737, *5 (4th Dist. Nov.
18, 1998). Accordingly, Melendez’s claim that his trial counsel was ineffective for
failing to move for a mistrial or request a curative instruction lacks merit.
{¶47} For these reasons, Melendez’s fourth assignment of error is overruled.
{¶48} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WALDICK, P.J. and WILLAMOWSKI, J., concur.
/hls
-21- Case No. 9-24-34
JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
William R. Zimmerman, Judge
Juergen A. Waldick, Judge
John R. Willamowski, Judge
DATED: /hls
-22-