[Cite as State v. Pennington,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24090

v. : T.C. NO. 10CR388

RALLIEGH S. PENNINGTON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION

Rendered on the 2nd day of September , 2011.

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ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

PETER R. CERTO, Atty. Reg. No. 0018880, One South Main Street, Suite 1590, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

CELEBREZZE, J. (by assignment) 2

{¶ 1} Appellant, Ralliegh S. Pennington, challenges his conviction for aggravated

robbery arguing that his trial counsel was constitutionally deficient and that this conviction is

against the manifest weight of the evidence. After a thorough review of the record and law,

we affirm.

{¶ 2} Appellant was convicted for his part in the attempted theft of a catalytic

converter from a vehicle belonging to Keith Kelly and his wife. On January 24, 2010, Kelly

was attempting to reconcile with his estranged wife. He was visiting her at her apartment in

West Carrollton, Ohio. Kelly testified that he heard a loud buzzing or sawing noise coming

from the parking lot. Thinking it strange that someone would be working on a car at ten

o’clock at night in the rain, he looked out the window of the ground-floor apartment to see a

pair of legs sticking out from beneath his wife’s vehicle. Kelly told his wife to call the police

and then exited the apartment with a handgun, for which he had a valid conceal carry permit.

{¶ 3} Upon reaching the vehicle, Kelly realized there were two sets of legs under the

vehicle and shouted at the people to stand. Appellant and co-defendant, Clifford Chaffin,

sprung from under the vehicle. Kelly testified that Chaffin was brandishing a knife in one

hand, and the three men stood there for a moment; then, appellant ran from the area. Kelly

kept his firearm down at his side and advised Chaffin to put down his knife. Chaffin slowly

advanced forward while Kelly backed away. Kelly testified that, out of the corner of his eye,

he saw a flash and turned in time to see appellant running full-speed toward him. Kelly

raised his firearm and fired once, intentionally missing as appellant got to within

approximately ten feet of him. Appellant stopped, turned, and ran across the parking lot to a

house across the street. Chaffin cursed at Kelly and ran in the other direction.

{¶ 4} Officer Daniel Wessling conducted an investigation into the attempted theft of 3

the catalytic converter from Kelly’s wife’s vehicle. He arranged a photo array containing six

photographs — one of appellant and five randomly selected from various databases that

closely matched appellant’s physical characteristics. Kelly identified appellant out of the

photo array as the man who ran away initially and then returned. Kelly initially had some

difficulty identifying Chaffin in a second photo array conducted in a similar manner due to the

use of an out-of-date photograph of Chaffin. After a more recent photograph was used in a

third photo array, Kelly had no problem identifying Chaffin as the man with the knife in the

parking lot.

{¶ 5} Appellant and Chaffin were indicted on charges of aggravated robbery, and they

were tried together on May 17, 2010. Just before trial commenced, appellant moved the

court for new counsel arguing that his attorney did nothing to prepare for his defense. The

court inquired into counsel’s actions. After satisfying itself that counsel had prepared for

trial, including filing a motion to suppress, receiving and researching discovery, and

contacting witnesses, the trial court overruled appellant’s motion, and trial began.

{¶ 6} During jury deliberations, it was discovered that one juror had left the jury

deliberation room and refused to re-enter. She was crying and wanted to be sent home. The

court, in chambers, consulted with the attorneys for the state and defendants to determine what

should be done. The trial court brought the juror into chambers and, on the record,

questioned her about her ability to continue. She indicated that she could and would continue

to deliberate. She was reunited with the other jurors, and a verdict was reached a short time

later.

{¶ 7} Appellant was found guilty of aggravated robbery and sentenced to a prison term

of five years. He then filed the instant appeal raising two assignments of error. 4

Law and Analysis

Manifest Weight

{¶ 8} Appellant first argues that his “conviction is against the manifest weight of the

evidence.” The Ohio Supreme Court has held that “sufficiency of the evidence is a test of

adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of

law, but weight of the evidence addresses the evidence’s effect of inducing belief. In other

words, a reviewing court asks whose evidence is more persuasive — the state’s or the

defendant’s?” (Internal citations omitted.) State v. Wilson,

,

, ¶25.

{¶ 9} The court went on to hold that, “although there may be sufficient evidence to

support a judgment, it could nevertheless be against the manifest weight of the evidence.

‘When a court of appeals reverses a judgment of a trial court on the basis that the verdict is

against the weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees

with the factfinder’s resolution of the conflicting testimony.’”

quoting State v.

Thompkins (1997),

, citing Tibbs v. Florida (1982),

,

,

.

{¶ 10} Here, appellant was convicted of violating R.C. 2911.01(A)(1), which states in

part: “No person, in attempting or committing a theft offense, * * * or in fleeing immediately

after the attempt or offense shall * * * [h]ave a deadly weapon on or about the offender’s

person or under the offender’s control and either display the weapon, brandish it, indicate that

the offender possesses it, or use it[.]” R.C. 2913.01(K)(4) defines a theft to include “[a]

conspiracy or attempt to commit, or complicity in committing” an offense under R.C.

2911.01. 5

{¶ 11} Complicity is further defined in R.C. 2923.03(A)(2) to include one “acting with

the kind of culpability required for the commission of an offense,” aiding or abetting another

in committing the offense. This culpable intent may be inferred from the circumstances

surrounding the crime. State v. McGhee, Montgomery App. No. 23226,

,

¶67.

{¶ 12} Here, Kelly testified that Chaffin, while next to appellant, rose from under the

vehicle with a knife in his hand. The three men stood there for a brief period with Chaffin

brandishing the knife before appellant ran off. Appellant then returned, charging toward

Kelly. Appellant argues that his attempt to flee evidences an abandonment of any criminal

intent or purpose. However, his full-steam charge at Kelly nullifies any such argument.

Chaffin was brandishing a knife while appellant stood next to him. The two had just been

engaged in an attempt to cut the catalytic converter from Kelly’s wife’s vehicle. Appellant

attempted to charge at Kelly while he and Chaffin were at a stand-off, aiding Chaffin in

escape.

{¶ 13} From the testimony adduced at trial, it is clear the jury did not lose its way in

convicting appellant of aggravated robbery. Appellant’s run at Kelly from a blind position

indicated that appellant possessed the necessary culpable mental state to be convicted of

aggravated robbery.

Ineffective Assistance of Counsel

{¶ 14} Appellant next argues that he “received ineffective assistance of counsel which

amounted to a violation of his Sixth Amendment right to counsel.”

{¶ 15} This court has previously recognized that “[t]o establish a violation of the Sixth

Amendment on grounds of ineffective assistance of counsel, a criminal defendant must show 6

(1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance

resulted in prejudice.” State v. Malone (Dec. 13, 1989), Montgomery App. No. 10564, citing

Strickland v. Washington (1984),

,

,

.

{¶ 16} “When considering an allegation of ineffective assistance of counsel, a

two-step process is usually employed. First, there must be a determination as to whether

there has been a substantial violation of any of defense counsel’s essential duties to his client.

Next, and analytically separate * * * there must be a determination as to whether the defense

was prejudiced by counsel’s ineffectiveness.” State v. Lytle (1976),

. These cases strongly direct us to presume that defense counsel adequately

performed duties owed to the client.

{¶ 17} This court went on to note that “[d]eficient performance means that claimed

errors were so serious that the defense attorney was not functioning as the ‘counsel’ that the

Sixth Amendment guarantees.” State v. Marshall,

,

,

¶24, citing State v. Cook (1992),

.

{¶ 18} Appellant now raises six instances where his trial counsel allegedly failed to

adequately perform his duties.

{¶ 19} Appellant first argues that his attorney should have raised questions regarding

competency to stand trial. No evidence exists in the record, except appellant’s own statement

at sentencing, to demonstrate that appellant had any mental condition. The trial court had

various colloquies with appellant several times throughout trial, and appellant always

indicated he understood the proceedings. “A defendant is competent to stand trial if he is

capable of understanding the nature and objective of the proceedings against him and of

assisting in his defense. * * * Absent evidence to the contrary, a defendant is presumed to 7

be competent. R .C. 2945.37(G).” State v. Skatzes, Montgomery App. No. 15848,

, ¶360, citing State v. Carter,

,

; R.C.

2945.37(G). See, also, State v. Rose, Clark App. No. 2004 CA 40,

.

{¶ 20} Appellant’s responses to questions were lucid and appropriate. Nothing in the

record demonstrates that appellant could not properly aid in his defense or understand the

proceedings. Appellant has failed to demonstrate that his mental state should have been

raised by his attorney and that a failure to do so resulted in prejudice.

{¶ 21} Appellant next argues that he should have been allowed to take the stand to

testify in his own defense. He asserts it was error for his attorney to counsel him otherwise.

However, the trial court made clear that the decision to take the stand or remain silent was

appellant’s decision alone. The trial court asked appellant twice whether he wished to testify

and explained his rights associated with this decision both times. The court ensured that it

was appellant’s wish not to testify and that appellant was not coerced into that decision by his

trial counsel or anyone else.

{¶ 22} Appellant argues he was adjusting to new medication, which prevented him

from making an informed decision. However, nothing in the record demonstrates that

appellant could not understand his options and make a decision. Further, a decision to testify

may have allowed the state to introduce evidence of appellant’s criminal history, a significant

detriment to appellant’s defense. It was not ineffective assistance for appellant’s attorney to

counsel him to not testify given the important ramifications of a decision to testify.

{¶ 23} Appellant also argues that his attorney should have requested severance of his

trial from that of his co-defendant.

{¶ 24} “The law favors the joinder of co-defendants and the avoidance of multiple 8

trials because it, ‘conserves judicial and prosecutorial time, lessens the not inconsiderable

expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the

possibility of incongruous results in successive trials before different juries.’” State v.

Humphrey, Clark App. No. 2002 CA 30,

, ¶64, quoting State v. Daniels

(1993),

. Therefore, appellant has the burden of demonstrating material

prejudice should a conjoined trial occur. State v. Torres (1981),

.

{¶ 25} Here, appellant relies on the holding of the U.S. Supreme Court in Bruton v.

United States (1968),

,

,

, to support his argument.

In Bruton, a defendant gave a statement confessing guilt that also inculpated his co-defendant.

The Court ruled that such a statement, inadmissible against the co-defendant, impermissibly

prejudiced his ability to confront the witnesses against him.

. The Ohio

Supreme Court has agreed stating, “[a]n accused’s right of cross-examination secured by the

confrontation clause of the Sixth Amendment is violated in a joint trial with a non-testifying

co-defendant by the admission of extrajudicial statements made by the co-defendant

inculpating the accused.” State v. Moritz (1980),

, paragraph one of the

syllabus.

{¶ 26} However, Bruton is not applicable to the present case. Here, two witnesses

testified that Chaffin told them he was attempting to steal a catalytic converter from a vehicle

when the owner of the vehicle appeared and shot at him. Chaffin’s statements did not

inculpate or even mention appellant. These prior admissible statements against Chaffin are

not evidence against appellant and do not implicate a violation of his right to confront the

witnesses against him. See State v. Reid, Montgomery App. No. 19352,

,

¶10. Therefore, appellant’s counsel was not ineffective for failing to request severance when 9

there existed no probability that such a motion would or should have been granted.

{¶ 27} Appellant also argues that his counsel was deficient for failing to make a

renewed motion for acquittal pursuant to Crim.R. 29 after the close of his case. However,

appellant’s counsel did make a lengthy argument for acquittal after the close of the state’s

case. Following denial by the trial court, the appellant rested his case without putting on any

witnesses or additional evidence. It is therefore highly unlikely that the trial court’s decision

would have changed given this fact. Appellant cannot show that his attorney’s failure to

make a renewed motion for acquittal resulted in prejudice, a necessary element of a successful

claim of ineffective assistance.

.

{¶ 28} Appellant next argues that various jury instructions should have been requested

based on his theory that he abandoned any criminal intent he possessed. According to the

evidence adduced at trial, appellant did not abandon the criminal enterprise when he ran away.

Therefore, trial counsel was not ineffective for failing to request instructions on abandonment

and culpability. Also, the request of such instructions are matters of trial strategy. State v.

Winn,

,

.

{¶ 29} Appellant also claims counsel should have requested an instruction on theft, a

lesser included offense of aggravated robbery. “Failure to request instructions on lesser

included offenses may be a matter of trial strategy and, in that event, does not constitute

ineffective assistance of counsel.” State v. Ward, Montgomery App. No. 23134,

, ¶21, citing State v. Griffie,

,

.

{¶ 30} The request of an instruction on theft would be inconsistent with one of

appellant’s attorney’s defensive strategies. Trial counsel argued that appellant was not and

could not be identified as one of the men who attempted to rob Kelly. Therefore, an 10

instruction asserting that appellant only committed theft and not aggravated robbery would be

antithetical to that theory. That decision is clearly a matter of trial strategy and not a proper

grounds for ineffective assistance of counsel in this case.

{¶ 31} Finally, appellant argues that trial counsel was ineffective for failing to request

a mistrial after irregularities during jury deliberations came to light. Irregularities that affect

a defendant’s substantial rights may be grounds for a mistrial according to R.C. 2945.79.

Appellant argues that the irregularities in jury deliberations did just that, and his attorney was

constitutionally deficient for failing to request a mistrial.

{¶ 32} During deliberations, a court official informed the parties that Juror No. 4 had

left the jury deliberation room sobbing and refused to return. She had signed a verdict form

outside the presence of the rest of the jurors and left the room. After consulting with all

attorneys in the case, the judge called the juror into his chambers, along with the court

reporter, and inquired into her ability to continue as a juror. She indicated she could continue

to serve and resume deliberations. It also came to light that she was using a handheld

electronic gaming device during deliberations. The trial court later questioned her about this

and inquired about any use of this device during trial. The parties were satisfied with her

responses that she did not use the device while testimony was being given. Appellant was

asked if he thought Juror No. 4 should continue serving as a juror, and he said that she should.

After the verdict was read in open court, the trial court polled the jurors individually asking

them if these were their verdicts and if they were arrived at voluntarily. They each answered

affirmatively.

{¶ 33} In an analogous situation, the Ohio Supreme Court found that a trial court’s

polling of the jury individually after a juror was crying and refusing to re-enter the court room 11

provided evidence that the juror’s verdict was a product of her own free will. State v.

Hessler,

,

. That court further noted that the appellant

had specifically agreed to the procedure used and waived all but plain error.

{¶ 34} Similarly, appellant here agreed to the procedure used, and there is no evidence

that a motion for a new trial would have been granted had such a motion been made. The trial

court followed the same procedure used by the trial court in Hessler and scrupulously

safeguarded appellant’s rights. Based on this holding of the Ohio Supreme Court,

appellant’s counsel was not constitutionally deficient for failing to request a mistrial based on

irregularity in the proceedings.

{¶ 35} Appellant has failed to demonstrate any error by his counsel that would have

likely changed the outcome of his trial. Therefore, this assigned error is overruled.

The judgment of the trial court is affirmed.

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FROELICH, J. and HALL, J., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Andrew T. French Peter R. Certo Hon. Dennis J. Langer