[Cite as State v. Owens, 2018-Ohio-4884.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27827 : v. : Trial Court Case No. 2017-CR-2112 : RICHARD OWENS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 7th day of December, 2018.
MATHIAS H. HECK, JR. by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery County Prosecutor’s Office, Appellate Division, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MICHAEL MILLS, Atty. Reg. No. 0092133, 371 W. First Street, 2nd Floor, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Richard Owens appeals his conviction for one count of
robbery (use of force), in violation of R.C. 2911.02(A)(3), a felony of the third degree; one
count of breaking and entering (unoccupied structure), in violation of R.C. 2911.13(A), a
felony of the fifth degree; and one count of assault, in violation of R.C. 2903.13(A), a
misdemeanor of the first degree. Owens filed a timely notice of appeal with this Court
on December 5, 2017.
{¶ 2} The record establishes that on June 28, 2017, Douglas Weng was at home
alone at his farm located in Harrison Township, Montgomery County, Ohio. Weng
testified that at approximately 12:00 p.m., he heard his dog begin barking just outside the
house. Weng testified that he also heard a man yelling. Weng looked outside and
observed a shirtless man wearing tan shorts who had a tattoo on his neck. Weng
testified that he went outside to confront the man, later identified as Owens, who was
yelling that “they’re shooting at me” and “[t]hey want to kill me.” Weng testified that
Owens was sweating profusely and appeared disoriented.
{¶ 3} At this point, Weng ordered Owens to leave the property. Weng testified
that he walked back through his house and exited the front door. From his new vantage
point, Weng observed Owens walk toward the back side of the house and attempt to wrap
himself in some shrubbery located there. Weng testified that he then observed Owens
come out of the shrubbery and attempt to run across the street, whereupon he was hit by
a car. Paramedics and police arrived shortly thereafter, but Owens refused treatment
and left the scene. Owens provided the police with his name before he left. After
leaving the scene, Owens, who admitted to having used methamphetamine that day, -3-
testified that he walked to a nearby automobile detailing shop and called his mother to
pick him up. Owens testified that his mother, Shirley Owens, arrived shortly thereafter,
picked him up, and took him home. Owens testified that he and his three children from
a previous relationship lived with his mother and father at their home in Harrison
Township.
{¶ 4} Weng testified that, a day later on June 29, 2017, he was at home with his
girlfriend, Cynthia Bowman. Bowman, who was in the backyard washing her dog,
testified that she alerted Weng that she believed someone was in the barn on the
property. Weng testified that he immediately grabbed a shovel and ran to the barn.
Once he reached the barn, Weng testified that he recognized Owens, the man from the
incident the previous day. Weng testified that Owens was standing in the barn holding
a milk jug and an assortment of washing machine hoses. At that point, Owens ran out
of the barn and around a large pit in the backyard, where he picked up a heavy metal
plate. Owens threw the plate at Weng, striking him in the arm. Weng continued to
chase Owens to the front area of the house. Once there, Owens picked up a pair of
hedge trimmers and threw them at Weng, striking him in the leg. Weng testified that
Owens then ran through a neighbor’s yard and left the scene.
{¶ 5} Significantly, we note that Weng identified Owens as being the same man
located on his property on both June 28 and June 29, 2017. Bowman also positively
identified Owens as the man she observed on Weng’s property on June 29, 2017.
Bowman also testified that on June 29, 2017, Owens was not wearing a shirt, and she
observed a tattoo on his neck.
{¶ 6} Shortly after the second incident at Weng’s property, Brandy Coffman was -4-
riding his motorcycle on a nearby roadway. As he slowed down to avoid potholes in the
road, Coffman testified that he observed a man walking on the side of the road. As
Coffman watched, the man ran to the other side of the road and went into the woods.
When Coffman passed by the area where the man ran into the woods, the same individual
stepped out from behind a tree and threw a rock or a bottle at Coffman. The object struck
the motorcycle’s windshield and shattered it. The broken windshield cut Coffman along
the side of his head and on his hands. Coffman immediately stopped the motorcycle and
yelled at the man, but he ran away. At trial, Coffman testified that the man was shirtless
and sweating profusely. At trial, Coffman positively identified Owens as the man who
threw the object at his motorcycle on June 29, 2017. After the incident, Coffman called
911 and then drove over to Weng’s property, where he observed that the police and
paramedics had already arrived. Once there, Coffman received treatment for his injuries
and made a statement to police.
{¶ 7} On July 24, 2017, Owens was indicted for one count of robbery (use of force),
one count of breaking and entering (unoccupied structure), and one count of assault. At
his arraignment on July 27, 2017, Owens stood mute, and the trial court entered a plea
of not guilty on his behalf. Furthermore, the trial court set bail at $10,000. On August
14, 2017, Owens filed a motion for reconsideration of bail; the trial court denied the motion
in an entry issued on August 18, 2017. Owens filed another motion for reconsideration
of bail on August 21, 2017. On September 5, 2017, the trial court granted the motion for
reconsideration of bail. Owens was released on a conditional own recognizance (COR)
bond, but he was confined to his parents’ house on electronic home detention (EHDP).
{¶ 8} We note that the record establishes that Owens received discovery from the -5-
State on August 7, 2017. Accordingly, Owens had a duty to provide reciprocal discovery
to the State pursuant to Crim.R. 16.
{¶ 9} A jury trial was held in this matter on October 5 and October 6, 2017, and
Owens was found guilty as charged in the indictment. The trial court ordered a
presentence investigation (PSI) and scheduled the matter for sentencing. On November
6, 2017, Owens was sentenced as follows: Count I, robbery – 18 months in prison; Count
II, breaking and entering – ten months in prison; and Count III, assault – 180 days in jail.
The trial court ordered the sentences to be served concurrently for an aggregate prison
sentence of 18 months of imprisonment.
{¶ 10} It is from this judgment that Owens now appeals.
{¶ 11} Owens’s first assignment of error is as follows:
THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT-
APPELLANT TO PRESENT EVIDENCE OF HIS TATTOOS AT TRIAL.
{¶ 12} In his first assignment, Owens contends that the trial court erred when it
prohibited him from presenting evidence regarding the additional tattoos on his body.
First, Owens argues that, because he never filed a discovery request, his reciprocal
discovery obligation was never triggered. Thus, Owens argues that he had no obligation
under Crim.R. 16 to disclose the number and location of the tattoos he has on his body.
Furthermore, Owens argues that even if he had a reciprocal discovery obligation, tattoos
are identifying features and therefore not subject to discovery pursuant to Crim.R. 16.
{¶ 13} As previously stated, Bowman testified that the man she observed on
Weng’s property on June 29, 2017, had short brownish gray hair, was wearing tan shorts,
had no shirt on, and had a tattoo on his neck. On cross-examination, Bowman testified -6-
that, although the man was running very fast when she observed him, she believed that
he had a tattoo of writing on his neck. At this point, Owens’s counsel asked the trial court
for permission to allow Owens to untie his necktie and unbutton his collar in order to show
Bowman his neck. When she was questioned after the demonstration, Bowman testified
that she could only recall seeing two script tattoos on Owens’s neck on the day of the
incident. Bowman also testified that the tattoo she viewed on Owens’s neck at trial was
not exactly how she remembered it from the day of the incident. Bowman testified that
she recalled that the script tattoo on Owens’s neck began with a cursive “F.” Weng also
testified that the script tattoo on Owens’s neck began with a cursive “F.” When
questioned as to whether she recalled seeing any other tattoos anywhere else on
Owens’s body, Bowman testified that she had not.
{¶ 14} Thereafter, the following exchange occurred between defense counsel, the
prosecutor, and the trial court at sidebar:
Defense Counsel: I just wanted to make you aware of it before I do
it, but I’m going to have the Defendant take off his shirt like the day in
question because – to show, you know, what he looked like on the day in
question. Because everybody says that he didn’t have a shirt on.
The Court: Right now?
Defense Counsel: Yeah. Because I don’t have a photo.
The Court: (Indiscernible).
Defense Counsel: Yeah, it is when you see his body. There’s no
way they could’ve seen him. He’s covered in tattoos.
The Court: Oh, you see – -7-
Defense Counsel: We’ve had two witnesses now testify that they
have seen him on two occasions, and now this lady [Bowman] here has fine
vision and she says that there were no other tattoos.
The State: I thought she said she hadn’t seen any other.
Defense Counsel: Correct.
The State: That she wasn’t exposed to that.
The State: That she testified she didn’t notice any other tattoos
because he was running and he was running so fast.
Defense Counsel: Uh-huh.
The State: Second, this is the first I’ve ever heard this. We’ve had
absolutely no notice of this. We have no photograph of his back. If I’m
going to –
Defense Counsel: You know we are talking about the tattoos
(indiscernible).
The State: If I am going to come to trial and use a gun in evidence, I
have to show her the gun, I have to tell her about it, she has to see it. There
has to be some notice. We have – this is the very first time I’m hearing
this.
The Court: We don’t know – right now we have no foundation that he
covered himself up two weeks ago with tattoos.
Defense Counsel: (Indiscernible).
The Court: So – -8-
Defense Counsel: (Indiscernible). She – he has one on the back of
his neck and now it’s –
The Court: I understand if we did discuss this at pre-trial, but just I
don’t think there’s sufficient foundation otherwise.
Defense Counsel: I – I mean, we don’t have (indiscernible) and I will
have another witness testify that there’s – the guy had no tattoos.
The State: Well, we don’t that the next witness is testifying to it, but
–
Defense Counsel: Well, yeah, (indiscernible).
***
The Court: So then why didn’t you tell them, well, I’m going to show
them a picture –
Defense Counsel: Actually, I was going to do the picture.
The Court: -- or –
Defense Counsel: I was going to have a picture of him.
The Court: -- I’m going to ask –
Defense Counsel: But we’d never know.
Defense Counsel: We know (indiscernible) that, you know, he said
that there were a number of tattoos, but you never know (indiscernible).
We don’t know the story. So I have a (indiscernible) to say he had tattoos.
But there’s no way that you can see the – like some – from what she said,
from three feet away. I mean, he’s covered. -9-
The Court: Sustained.
Defense Counsel: He has them on his legs too.
The Court: Sustain the objection.
Defense Counsel: All right.
Defense Counsel: All right. Well, (indiscernible) that means
tomorrow I’ll have to do it before closing.
The State: No, Your Honor. Objection. Defense counsel has had
notice about what these witnesses were going to testify to since they
received the police report, and at least since the preliminary hearing on, I
believe it was in early June or something like that, since early June there’s
been discussion about the neck tattoos, and that was fine. We didn’t object
when she questioned him on that, but one day is completely insufficient
notice.
Defense Counsel: But we knew that there was – remember we [sic]
talking about this as far as John Plummer 1 (indiscernible) because he
doesn’t have any tattoos besides the one on his neck. And I said he’s –
The State: (Indiscernible).
Defense Counsel: -- covered in tattoos.
The State: This is trial by surprise.
1 John Plummer is an individual with a neck tattoo who also lives in the Harrison Township area. Plummer’s booking photograph was not admitted into evidence at trial. -10-
Tr. 235-238.
{¶ 15} The admission of evidence is within the sound discretion of the trial court.
See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 61. We
will not disturb a trial court's ruling on evidentiary issues on appeal absent an abuse of
discretion and proof of material prejudice. State v. McKelton, 148 Ohio St.3d 261, 2016-
Ohio-5735, 70 N.E.3d 508, ¶ 181; State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581,
74 N.E.3d 319, ¶ 116. An abuse of discretion occurs if the trial court's decision is
“unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶ 16} Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Evid.R. 401. All relevant evidence is
admissible unless its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury. McKelton at ¶ 144, citing Evid.R.
402 and 403(A).
{¶ 17} Courts have found evidence that a defendant has a particular tattoo to be
relevant for various purposes. Tattoo evidence can be used to establish motive. State
v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 75; State v.
Jenkins, 4th Dist. Lawrence No. 05CA7, 2006-Ohio-2546, ¶ 53. Tattoo evidence can
also be used to rebut a defendant's statements. State v. Adams, 12th Dist. Butler No.
CA2009-11-293, 2011-Ohio-536, ¶ 35; State v. Chisolm, 9th Dist. Lorain No.
05CA008782, 2006-Ohio-5051, ¶ 22. Finally, as in the instant case, tattoo evidence may -11-
be relevant to the identification of the defendant. McKelton at ¶ 195-196; State v. Doan,
12th Dist. Clinton No. CA97-12-014, 2000 WL 221963, *14 (Feb. 28, 2000).
{¶ 18} In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973),
the Supreme Court upheld grand jury subpoenas ordering twenty persons to appear for
voice recordings. The grand jury sought the recordings to compare with recordings of
unknown voices obtained through legal wiretaps. The court held that neither the order
to appear nor the order to provide voice recordings constituted a search or seizure within
the meaning of the Fourth Amendment. The court held that an individual has no
reasonable expectation of privacy in the sound of his voice. Id. at *13-14. “The physical
characteristics of a person's voice, its tone and manner, as opposed to the content of a
specific conversation, are constantly exposed to the public. Like a man's facial
characteristics, or handwriting, his voice is repeatedly produced for others to hear. No
person can have a reasonable expectation that others will not know the sound of his
voice, any more than he can reasonably expect that his face will be a mystery to the
world.” Id. at *14. Thus, if a defendant has no reasonable expectation of privacy for
certain identifying characteristics, then that same defendant has no obligation to disclose
those same characteristics to the State during discovery.
{¶ 19} Upon review, we conclude that the trial court erred when it prohibited
defense counsel from introducing evidence of Owens’s additional tattoos on the basis of
a discovery violation. Owens testified that he had approximately 26 tattoos located on
his neck, arms, and legs. Owens’s tattoos were not subject to discovery pursuant to
Crim.R. 16. Rather, Owens’s tattoos were equivalent to other identifying features such
as height, weight, eye color, hair color, and skin color. The State ostensibly had the -12-
opportunity to photograph Owens while he was in custody pursuant to standard booking
procedures, and there was no evidence that defense counsel withheld or even possessed
any photographs of Owens’s tattoos, when she requested permission to allow Owens to
remove his shirt.
{¶ 20} At trial, Owens presented an alibi defense. Specifically, he adduced
evidence, in the form of his own testimony and his mother’s testimony, that he was
bedridden at his parents’ residence on June 29, 2017, and did not leave the residence at
any point during that day. Thus, Owens argued that he could not have been the man
who robbed Weng and attacked him and Coffman. Weng and Bowman testified that the
only tattoo they observed on Owens was located on his neck. Coffman testified that he
did not recall Owens having any tattoos on his body. Therefore, the fact that Owens
purportedly had approximately 26 tattoos all over various areas of his body was relevant
to the witness identification of him as the perpetrator of the instant offenses.
{¶ 21} Having found error in the trial court’s decision to prohibit Owens from
introducing demonstrative evidence of his additional tattoos, we must determine whether
said decision excluding potential impeachment evidence constituted harmless error.
{¶ 22} “[E]rror is harmless unless the substantial rights of a defendant have been
affected.” State v. Harding, 2d Dist. Montgomery No. 20801, 2006-Ohio-481, ¶ 24. The
Ohio Supreme Court has recently set forth the following criteria for determining whether
an error in the admission of evidence affected the defendant's substantial rights:
First, it must be determined whether the defendant was prejudiced by the
error, i.e., whether the error had an impact on the verdict. [State v. Morris,
141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,] at ¶ 25 and 27. -13-
Second, it must be determined whether the error was not harmless beyond
a reasonable doubt. Id. at ¶ 28. Lastly, once the prejudicial evidence is
excised, the remaining evidence is weighed to determine whether it
establishes the defendant's guilt beyond a reasonable doubt. Id. at ¶ 29, ¶
33.
State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37.
{¶ 23} After thoroughly reviewing the entire record, we find that the trial court’s
decision to prohibit defense counsel from introducing demonstrative evidence of Owens’s
additional tattoos was harmless beyond a reasonable doubt. Initially, we note that Weng,
Bowman, and Coffman all identified Owens as having short brownish, blond, gray hair,
no shirt, and wearing tan shorts. While Weng and Bowman, but not Coffman, testified
that Owens had a neck tattoo, the record establishes that their identification testimony
was consistent with one another.
{¶ 24} We note that both Weng and Bowman testified that Owens’s neck tattoo
consisted of script. Weng and Bowman also testified that the script of the tattoo on
Owens’s neck began with a cursive “F.” Evidence was adduced at trial which established
that Owens did in fact have a neck tattoo in cursive script which began with an “F.” In
fact Owens testified himself to this fact. While Coffman testified that he did not observe
any tattoos on Owens’s body, the windshield on Coffman’s motorcycle had just been
shattered, and he was still in motion. Coffman testified that by the time he was able to
stop the motorcycle and turn around, Owens had fled into the woods. Nevertheless,
Coffman was still able to provide a description of the perpetrator that was consistent with
the description provided by Weng and Bowman. Coffman also testified that the man who -14-
threw the object at him had a goatee. This is consistent with Owens’s mugshot in which
he had a goatee. Defendant’s Ex. A.
{¶ 25} Significantly, Weng was able to observe Owens on both June 28 and June
29, 2017. Weng identified Owens by his facial features and testified that he was positive
that Owens was the same man that came to his house on both days. Additionally,
Owens admitted during his testimony that he was present on Weng’s property on June
28, 2017. Owens testified that he had attempted to purchase methamphetamine from
his drug dealer in the late morning of June 28, 2017. Owens testified that his drug dealer
began shooting at him, and he fled through a field eventually ending up on Weng’s
property. Upon being ordered off the property by Weng, Owens testified that he ran into
the street and was struck by an SUV. We also note that the defendant provided the
police with the name Richard Owens III after being hit by a car on June 28, 2017. Shirley
Owens testified that she drove to a local car detail shop and picked up Owens after he
was struck by the vehicle near Weng’s house.
{¶ 26} Weng testified that the direction that Owens had entered his property on
June 28, 2017, led to an area on Birch Drive in Harrison Township called Eldorado Plat.
Weng testified that Eldorado Plat is known in Harrison Township for its illegal drug activity.
Owens’s testified that his drug dealer operated out of some type of shop located on Birch
Avenue in Harrison Township. Given Owens’s testimony that he was buying drugs
earlier that day, the jury could have reasonably inferred that Owens came from the
direction of Eldorado Plat when he entered Weng’s property on June 28, 2017.
Furthermore, Owens testified that he generally used methamphetamine approximately
every eight hours. Eldorado Plat is near Weng’s property. It would not have been -15-
unreasonable for the jury to conclude that Owens was likely buying drugs at Eldorado
Plat on June 29, 2017, when he returned to Weng’s nearby property. A second reason
for Owens to be back in the area was that his girlfriend was “staying” with his drug dealer.
All of the eyewitnesses were able to positively identify Owens at trial as the man they
observed committing the instant offenses on June 29, 2017.
{¶ 27} Lastly, we note that, although Owens was not permitted to remove his shirt
in the courtroom or present photographs of his tattoos, he was still able to present some
evidence regarding all of his tattoos. Owens testified that he had a tattoo on his neck
that said “always forever Deanna Tara.” This is consistent with Bowman and Weng
describing the neck tattoo as some type of script with a cursive “F.” Owens also testified
that he has two tattoos on his legs. Owens testified that, in total, he had approximately
26 tattoos located on his neck, arms, and legs, and acknowledged adding another tattoo
on his arm approximately six months before his trial began. 2 Furthermore, defense
counsel argued in closing arguments that Weng, Bowman, and Coffmann all testified that
the man who committed the offenses on June 29, 2017, did not have any body tattoos.
This argument was not objected to by the State, although two of the eyewitnesses did not
assert that no body tattoos existed, just that they did not notice any beyond the neck
tattoo. Defense counsel then argued to the jury that because Owens has 26 tattoos, he
could not have been the perpetrator. In light of the significant eyewitness evidence of
Owens’s guilt, coupled with Owens’s own admissions regarding his conduct on June 28,
2017, we find that the trial court’s erroneous decision to prohibit defense counsel from
2Notably, Owens did not offer any testimony regarding whether any of the 26 tattoos that he had were located on his chest and/or back. -16-
introducing evidence of Owens’s additional tattoos was harmless beyond a reasonable
doubt.
{¶ 28} Owens’s first assignment of error is overruled.
{¶ 29} Owens’s second and final assignment of error is as follows:
THE DEFENDANT-APPELLANT WAS SUBJECT TO INEFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS.
{¶ 30} In his final assignment, Owens argues that his trial counsel was ineffective
for: 1) failing to provide the State with reciprocal discovery including evidence of all of
Owens’s tattoos; or 2) failing to request a less severe sanction other than exclusion of
evidence of Owens’s additional tattoos. In light of our disposition with respect to
Owens’s first assignment of error, we need not address his argument regarding reciprocal
discovery, but we will address the merits of his less-severe-sanction argument.
{¶ 31} “We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State
v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Pursuant to those cases, trial
counsel is entitled to a strong presumption that his or her conduct falls within the wide
range of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction
based on ineffective assistance of counsel, it must be demonstrated that trial counsel's
conduct fell below an objective standard of reasonableness and that his errors were
serious enough to create a reasonable probability that, but for the errors, the result of the
trial would have been different. Id. Hindsight is not permitted to distort the assessment -17-
of what was reasonable in light of counsel's perspective at the time, and a debatable
decision concerning trial strategy cannot form the basis of a finding of ineffective
assistance of counsel.” (Internal citation omitted). State v. Mitchell, 2d Dist. Montgomery
No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 32} An appellant is not deprived of effective assistance of counsel when counsel
chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown,
38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective
assistance of counsel is not whether counsel pursued every possible defense; the test is
whether the defense chosen was objectively reasonable. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court may not second-
guess decisions of counsel which can be considered matters of trial strategy. State v.
Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic and tactical
decisions may not form the basis of a claim for ineffective assistance of counsel, even if,
in hindsight, it looks as if a better strategy had been available. State v. Cook, 65 Ohio
St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 33} Upon review, we find no merit to Owens’s argument that his trial counsel
was ineffective in failing to request a less severe sanction than exclusion of demonstrative
evidence of Owens’s additional tattoos. Specifically, the record seems to suggest that,
after being prohibited from asking Owens to take off his shirt during trial, defense counsel
alluded to the use of photographs of all of Owens’s tattoos, which ostensibly could have
been taken after the trial concluded for the day. Defense counsel then seemed to
suggest that she would enter the photographs into evidence on the next day of trial. The
State objected to any alternative display on the basis that such photographs were not -18-
provided during discovery, and it therefore did not have sufficient notice. As previously
discussed, the trial court sustained the State’s objection.
{¶ 34} In our view, defense counsel’s attempt to potentially use photographs of
Owens’s tattoos as evidence after being prohibited from asking Owens to take off his shirt
during trial constituted a request for a less severe sanction. Additionally, defense
counsel was able to elicit testimony from Owens regarding the number (approximately
26) and location of his tattoos. Therefore, we conclude that ineffective assistance is not
demonstrated.
{¶ 35} Owens’s assignments of error having been overruled, the judgment of the
trial court is affirmed.
.............
FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck Sarah E. Hutnik Michael Mills Hon. Timothy N. O’Connell