[Cite as State v. Dye,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103907

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JAMAL DYE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-594386-A

BEFORE: McCormack, J., Keough, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: December 8, 2016 ATTORNEY FOR APPELLANT

Nicole C. Longino 11811 Shaker Blvd., #420 Cleveland, OH 44120

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Margaret Troia Mahmoud Awadallah Assistant Prosecuting Attorneys 1200 Ontario Street Justice Center, 9th Floor Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Jamal Dye appeals from a judgment of the Cuyahoga County Court of

Common Pleas that convicted him of murder and additional related offenses following a

jury trial. Having reviewed the record and applicable law, we affirm his convictions.

{¶2} On March 8, 2015, James Gray held a party at his house on Linnet Avenue

near West 105th Street in Cleveland. The partygoers consumed alcohol and used drugs

into midnight. All night long, tension brewed between appellant Jamal Dye, 20, and

James Gray, 25. The tension culminated in the shooting death of Gray (“victim”) by Dye

(“appellant”) around 3:30 a.m.

{¶3} During the ten-day trial, the state’s presented 19 witnesses. Seven

individuals who attended the party that night testified, six for the state and one for the

defense. Appellant also took the stand. He claimed he shot the victim in self-defense.

The jury also viewed the house where the shooting took place.

{¶4} After a lengthy jury trial, the jury acquitted appellant of aggravated murder

but found him guilty of murder. The jury also found him guilty of felonious assault and

carrying a concealed weapon. The trial court sentenced appellant to 18 years to life.

Testimony by the State’s Witnesses

{¶5} Of the state’s witnesses who were at the party that night, most of them did

not witness the shooting but testified to the conflict between appellant and the victim that

precipitated the shooting. These witnesses’ accounts of how the events of the evening unfolded varied in details and were not entirely consistent with each other. There was,

however, one eyewitness to the shooting, Elizabeth Torres, and she testified for the state

as well.

a. Testimony of Partygoers who Did Not Witness the Shooting

{¶6} Harold Williams, a friend of the victim, testified that tension arose between

appellant and the victim on the night of the incident over Williams’s ex-girlfriend Idrijana

Vajusi. When Vajusi arrived with her friend Monica Correa, Williams was not happy to

see Vajusi at the party. He asked her to leave but she would not. Williams and Correa

then went upstairs to engage in sex. Later, Williams told appellant about his sexual

encounter with Correa and encouraged appellant to engage in sex with Vajusi as well as

to take Vajusi away from the party. Appellant then left the party with the two women.

Williams later called Vajusi on her phone but appellant answered the phone. Appellant

told Williams to stop calling because he was “trying to fuck” and hung up the phone.

Feeling disrespected, Williams called appellant back on Vajusi’s phone again and Vajusi

answered the phone. The two started to argue. Appellant got on the phone. Williams

told appellant not to bring Vajusi back to the party and handed his phone to the victim.

Appellant then argued with the victim, who was visibly angry. Despite Williams’s

request, appellant returned to the victim’s house with the two women. The tension

between appellant and the victim escalated. The victim asked appellant to leave, but

appellant refused. The victim then challenged appellant to a fight in the basement. At

that point, appellant left but hinted that he would return soon. {¶7} Moments after, Williams heard gunshots erupting outside. He rushed to

the side door trying to lock the door. Appellant used a black pistol to block the door

from closing — Williams identified the gun as the same gun shown in the state’s exhibit

Nos. 177 and 178, photographs of appellant holding a gun on a prior occasion. Another

partygoer and the victim’s cousin, Mario Cargill, and appellant then struggled over the

gun in the kitchen area. Both Cargill and appellant fell into a window. According to

Williams, while appellant and Cargill struggled over the gun, the victim went upstairs to

retrieve a shotgun, in an attempt to “calm” the situation.

{¶8} After both Cargill and appellant fell into the widow, Cargill wrestled

appellant to the ground, while appellant still held the pistol in his hand. Either the victim

or another individual by the nickname of “Tone” then ran in and kicked the pistol out of

appellant’s hand. Williams then ran out of the house to get away from the scuffle.

While hiding, he heard gunshots 30 feet away. According to Cargill, who also testified,

Williams grabbed the gun and took it with him when he ran out of the house.

{¶9} Both Idrijana Vajusi and Monica Correa testified. Vajusi testified that she

and her friend Correa drove with appellant trying to get a bottle of liquor. Appellant then

drove to his mother’s house to switch cars before returning to the party. While she was

in the basement, she heard a commotion on the first floor. She exited the house through

the side door. While walking toward the front of the house, she heard a gunshot. She

went inside to see the victim lying on the floor. {¶10} Monica Correa testified that after she and Williams engaged in sexual

conduct, she, Vajusi, and appellant left the party. The three drove around trying to obtain

a bottle of liquor. Before they returned to the party, appellant switched the car he was

driving with his mother’s car. Back at the party, the three were met at the door by

Williams and the victim, who were unhappy to see the return of appellant and Vajusi.

Correa went to the basement to retrieve her purse. Five minutes later, while in the

basement, she heard five gunshots going off, but could not recall whether the shots came

from inside or outside the house.

{¶11} Mario Cargill, the victim’s cousin, also testified about the events leading to

the shooting. He testified that there had been past conflict between appellant and the

victim. When he arrived at the party, the victim told him to be prepared for a fight

between the victim and appellant. When appellant arrived with Vajusi and Correa, he

acted disrespectfully by entering the house through the front door, brushing past Cargill’s

girlfriend Elizabeth Torres, which caused an argument between Cargill and appellant. At

the request of Torres, the argument de-escalated. Later, Cargill saw appellant and victim

in a heated argument and one of appellant’s friends handed appellant a silver gun.

According to Cargill, Cargill helped de-escalate the conflict at this time. Appellant and

the victim then headed to the front porch, and the victim challenged appellant to a fight in

the basement. Appellant and the victim returned to the house without a fight.

{¶12} Cargill then went into a bedroom with his girlfriend Elizabeth Torres and

their baby. Thirty to forty minutes later, he heard the noises of a scuffle coming from the kitchen area. He went to the kitchen and saw appellant and the victim struggling with

each other against the window over a gun appellant was holding. It was not the silver

gun he saw someone handing to appellant earlier, but a “Tec-9,” a type of gun with which

he was familiar. To stop the trigger from being pulled, Cargill grabbed the gun from

appellant, but dropped it when the victim’s dog came up and bit Cargill on the leg. At

this point, Harold Williams picked up the gun and ran outside with the gun, while

appellant and the victim continued to fight. Cargill went into a bathroom to check on his

dog bite. While in the bathroom, he heard a gunshot. He rushed to the kitchen to find

the victim lying on the ground. He then heard two or three gunshots coming from the

outside. Cargill ran outside and jumped into his truck to look for appellant. He found

appellant walking down the street holding the silver gun he had seen on the earlier

occasion. Cargill pulled his truck in front of appellant, and the two fought with each

other. Cargill asked appellant, “why did you kill my cousin?” Appellant put the gun to

Cargill’s head and said, “I’ll kill you too.” As the two struggled, they were pulled apart

by others. Cargill returned to the house and was met by the police. Joseph Kapostasy, a

neighbor, witnessed the struggle between appellant and Cargill in the street.

b. Eyewitness Testimony

{¶13} While the other witnesses were only able to testify to the confrontations

between appellant and the victim leading to the eventual shooting, Cargill’s girlfriend

Elizabeth Torres witnessed the shooting. Also, unlike the other witnesses, Torres testified she did not consume any alcohol or use any drugs that night. She provided the

following eyewitness account.

{¶14} Torres testified that, on the day of the incident, she and her baby were in the

victim’s home to spend time with Cargill, the baby’s father. While in a first floor

bedroom with Cargill and the baby, she heard gunshots erupting outside the house.

Cargill left to find out what was going on. When Torres heard a second round of

gunshots, Torres herself went outside to find out what was taking place. She saw

appellant, the victim, and Cargill were all outside: the victim was holding a shotgun, and

appellant was shooting a black gun in the air. All three men then ran back to the house.

The victim went through the front door; appellant went through the side door; and Cargill

ran toward the back of the house. Still outside the house herself, Torres then saw,

through the front door, appellant shooting the victim as the victim walked into the

kitchen. The victim fell to the floor. Torres did not observe any struggle between the

two men prior to the shooting.

{¶15} Taneisha Smith, a former girlfriend of appellant, also testified for the state.

She was not at the party. She testified that appellant came to her on the night of the

incident and told her he was being “jumped” at a party and he killed “Juice” (the victim’s

nickname) in self-defense.

{¶16} The police did not find any weapons at the scene but retrieved some spent

cartridge casings. Detective James Kooser, a firearms examiner from the forensic lab,

testified that .380 caliber spent cartridge casings and 0.9 millimeter spent cartridge cases were found outside the home. He also testified a .380 caliber bullet killed the victim. In

addition, he testified that appellant appeared to be holding a “Intratech 9” in state’s

exhibit Nos. 177 and178 (photographs of appellant holding a gun), and that both the

magazine in the photographs and the magazine recovered on scene had duct tape on the

bottom.

{¶17} Dr. James Keep from the county’s medical examiner’s office testified that

the victim died of a gunshot wound in the abdomen. Curtiss Jones, a supervisor in the

county’s trace evidence department, testified that the shot that hit the victim was fired in

close proximity, from a foot or less away.

Defense

{¶18} The defense called Andre Barnes, a friend of appellant who was at the party

that night. Barnes testified he never saw appellant with a weapon that night. He heard a

commotion coming from the first floor while he was in the basement. He went upstairs

and saw appellant on the ground surrounded by people who appeared to be stomping him;

he got scared and ran from the house.

{¶19} Appellant took the stand and testified in his own defense. He gave a

drastically different account of how the shooting occurred. He admitted he was drinking

and smoking marijuana on the night of the incident. He also admitted shooting the

victim, but claimed he acted in self-defense.

{¶20} Appellant testified that he left the victim’s house party with the two women,

Vajusi and Correa. When they returned to the party, he was approached by Harold Williams, who was unhappy he brought Vajusi back. “Tone” approached him as well,

and they got into an argument. Someone then tackled him, and he fell on the ground in

the kitchen. Several people were kicking and stomping him, and going through his

pockets. When he got up, Cargill and the victim “had guns in [his] face.” Cargill was

holding a shotgun; and the victim was holding a handgun. He held his hands up, saying

“don’t shoot me.” His friend “Adam” then came into the kitchen and tackled Cargill.

Appellant then went for the victim’s gun and grabbed it. The two fought over the gun,

and he “got the better and push[ed] off” the gun. The gun went off, and the victim was

shot. When asked why he shot the victim, appellant testified that he was scared for his

life. After he shot the victim, he dropped the gun and ran from the house. As he ran

down the street to his car, he felt bullets flying past him, and Cargill was in his truck

trying to run him over. Appellant quickly got into his own car and drove off.

Appeal

{¶21} On appeal, Dye raises six assignments of error:

1. The Trial Court erred when it overruled Defendant’s challenge for cause of one of the jurors who indicated that if she had any doubts after listening to the evidence that she would believe the state’s police officer witnesses over the Defendant and decide in favor of the state.

2. The Trial Court erred by overruling Defendant’s objection to State’s witness, Harold Williams, giving multiple testimonial hearsay evidence as to what he thinks the Defendant told him; what that decedent, James Gray, told him the Defendant said; what someone else said to the Defendant; what the Defendant said to someone else and why said Harold Williams believes the decedent said what he did say to the Defendant, all of which does not fall within any hearing [sic] exceptions. 3. The Trial Court erred by allowing the State to enter cumulative and new evidence at trial where its probative value is substantially outweighed by the danger of unfair prejudice of confusion of the issue or of misleading the jury and needless presentation of cumulative evidence.

4. The Trial Court abused its discretion by allowing the admission of picture evidence of the Defendant wearing a plain, gray, hooded sweatshirt, taken on an occasion prior the date of James Gray’s fatal shooting, where there was no evidence that the sweatshirt in the pictures was the same sweatshirt worn by the Defendant at the time of James Gray’s fatal shooting.

5. The Trial Court erred when it allowed the admission of statements made by a Third Party through the testimony of an investigating officer.

6. Appellant was denied effective assistance of trial counsel where the

Court had previously ruled that irrelevant, cumulative and highly

prejudicial pictures could not be introduced, shown to the jury or

admitted into evidence by the State, and subsequently, Appellant’s

trial counsel introduced them into evidence and showed the pictures

to the jury during the Appellant’s direct examination where there

was no strategic basis for showing the jury the cumulative, highly

prejudicial pictures, that otherwise would not have come in, and

appellant was prejudiced as a result.

{¶22} Appellant does not challenge his convictions of murder and additional

related offenses as against the manifest weight of the evidence. Instead, he challenges

the trial court’s ruling denying his request to remove a juror for cause; argues certain testimony and exhibits were improperly admitted; and argues his trial counsel provided

constitutionally ineffective assistance of counsel. We address the assignments of error in

the order presented.

Juror Issue

{¶23} Under the first assignment of error, appellant claims the trial court erred

when it overruled his challenge for cause of one of the jurors. Pursuant to R.C.

2313.17(B)(9), good cause exists for the removal of a prospective juror when the juror

discloses by his or her answers that he or she cannot be a fair and impartial juror, or will

not follow the law as given by the court. Similarly, Crim.R. 24(C)(9) provides that a

person called as a juror may be challenged for cause when

the juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.

{¶24} A ruling on a challenge for cause will not be overturned on appeal unless it

appears that the trial court abused its discretion. State v. Vails,

,

(1970). The determination of whether a juror is biased involves a judgment

of credibility, the basis of which may not always be apparent from the record on appeal,

and therefore, a reviewing court will defer to the trial judge who sees and hears the juror.

State v. Huertas,

,

(1990). A prospective juror

challenged for cause should be excused only if the trial court has any doubt as to the juror’s being entirely unbiased. State v. Allard,

,

(1996).

{¶25} Here, appellant claims that Juror No. 5 was biased, but the trial court refused

to excuse her with cause, which forced the defense to use one of the allotted peremptory

challenges. Appellant claims that the trial court committed prejudicial error warranting a

new trial.

{¶26} The record reflect that when Juror No. 5 disclosed that she has a son-in-law

in law enforcement, the defense counsel asked her if she would “give the benefit of the

doubt to the State” in a close case. Juror No. 5 answered that “if it was not totally clear”

to her, she “would probably tend to believe the law [enforcement] officer.” After Juror

No. 5 made that statement, which appeared to cast doubt on her impartiality, the trial

court engaged in a colloquy with the juror and asked several follow-up questions:

THE COURT: * * * do you think that you can evaluate the credibility of witnesses?

JUROR NO. 5: Yes, I do.

THE COURT: Do you think that you can evaluate the credibility of police officers?

JUROR NO. 5: Yes.

THE COURT: So if you find that a police officer is untruthful, can you assert that as you are deliberating?

JUROR NO. 5: Yes.

THE COURT: Do you think that you can be fair and impartial?

JUROR NO. 5: Yes. THE COURT: Okay, do you think that you could go back and if, in fact you felt, you felt that the State had not met their burden of proof and talk to your son-in-law and say the State and the police officers dropped the ball in this case?

JUROR NO. 5: Yes.

THE COURT: Would you feel confident doing that?

JUROR NO. 5: Yes

THE COURT: Okay. And if you felt as if the State had not met their burden of proof, even knowing that there is a person here that died, you could put your name on a not guilty verdict?

JUROR NO. 5: Yes if I — if I truly thought they didn’t — yes.

{¶27} Despite that exchange, the defense counsel moved to have Juror No. 5

removed for cause. The court denied the motion. The defense counsel then used one of

their four peremptory challenges to remove the juror; the record reflects, however, that

the defense did not exhaust its allotted peremptory challenges.

{¶28} Our review of the colloquy between the trial court and the juror reflects that,

although the juror’s initial statements appeared to cast some doubt on her impartiality, the

juror’s qualification to serve as fair and impartial juror was sufficiently rehabilitated upon

the trial court’s further examination. She unequivocally affirmed that she would be fair

and impartial. On that basis, the trial court made a determination. The trial court did

not abuse its discretion in declining to remove the juror for cause. {¶29} Furthermore, there was no violation of the Sixth Amendment guarantee of a

trial by jury, because Juror No. 5 ultimately did not sit on the jury. The courts have

always recognized that peremptory challenges are not of constitutional dimension, but are

“a means to achieve the end of an impartial jury.” Ross v. Oklahoma,

,

,

(1988). “So long as the jury that sits is impartial, the fact

that the defendant had to use a peremptory challenge to achieve that result does not mean

the Sixth Amendment was violated.”

See also State v. Hale,

,

,

.

{¶30} Finally, a criminal defendant cannot complain of error in the trial court’s

overruling of a challenge for cause if the ruling does not force the defendant to exhaust

the allotted peremptory challenges before the full jury is seated. State v. Dean,

,

,

. Here, the record reflects appellant did

not exercise all of his peremptory challenges during the jury selection, and therefore, he

could not claim prejudice even if the trial court improperly overruled his challenge for

cause. The first assignment of error is without merit.

Hearsay

{¶31} Under the second assignment of error, appellant claims Harold Williams

was improperly permitted to testify to various statements made by the defendant in

violation of the hearsay rule. Appellant complains Williams improperly testified that

appellant stated to him over the phone that Williams should stop calling him because he

was trying to engage in sexual conduct with Vajusi. Appellant also complains Williams improperly testified that appellant told him he was waiting for Dwain Powell, someone

known to other witnesses as a drug dealer, to arrive, and that appellant and Powell later

went into a bathroom together.

{¶32} Hearsay is defined as an out-of-court statement offered to prove the truth of

the matter asserted. Evid.R. 801(C). Under Evid.R. 801(D)(2)(a), however, a party’s

own out-of-court statement offered against him is not considered hearsay, because the

party-declarant was in court to refute any unfavorable impact of the statement. Staff Note

to Evid.R. 801(D)(2)(a). Therefore, appellant’s own statements challenged here are not

hearsay.

{¶33} Appellant also claims Williams’s testimony regarding an exchange between

appellant and the victim at one point of the evening — the victim asked appellant to leave

the party but appellant refused to leave — constituted impermissible hearsay. Hearsay is

by definition a “statement,” defined as “(1) an oral or written assertion or (2) nonverbal

conduct of a person, if it is intended by him as an assertion.” Evid.R. 801(A). The

request or refusal (to leave) testified to by Williams is not an “assertion,” because a

request or refusal is “incapable of being proved either true or false and, therefore, cannot

be offered to prove the truth of the matter asserted.” State v. Young, 8th Dist. Cuyahoga

No. 78058,

, 13 (Apr. 12, 2001) (a directive is not a hearsay

because it is incapable of being proved either true or false). The second assignment of

error lacks merit. Alleged Character and Other Prejudicial Evidence

{¶34} Under the third assignment of error, appellant claims the trial court

improperly admitted pictures (state’s exhibit Nos. 177 and 178) and videos (state’s exhibit

Nos. 180 and 181) of him holding a “machine-gun” type of weapon, which were

impermissible other-acts evidence under Evid.R. 404(B) and impermissible prejudicial

evidence under Evid.R. 403(A).

{¶35} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Here, the images of appellant holding a gun were retrieved from his own

cell phone and Harold Williams identified the gun as what appellant was holding to block

the side door from closing. The ballistics expert James Kooser identified the gun as an

“Intratech 9” that shoots .9 millimeter bullets, which were found outside the home. As

such, the photographic evidence is not “other acts” evidence to show appellant’s

propensity to commit crime prohibited by Evid.R. 404(B). Rather, the photographic

evidence was introduced to show identity — it was appellant whom Williams saw holding

the particular gun to block the side door and who then engaged in a struggle with the

victim over the gun, although that gun was removed from the scuffle before the victim

was shot according to one witness’s account.

{¶36} Under the third assignment of error, appellant also complains of Mario

Cargill’s testimony describing appellant’s drinking, drug abuse, and poor temperament.

Appellant claims this is impermissible character evidence under Evid.R. 404(A), which states “[e]vidence of a person’s character or a trait of character is not admissible for the

purpose of proving action in conformity therewith on a particular occasion.” The

testimony regarding appellant’s drinking, abusing drugs, and acting aggressive was based

on the witness’s personal observation of appellant’s conduct and demeanor on the night

of the shooting. It is not impermissible character evidence under Evid.R. 404(A). The

third assignment of error is without merit.

Picture of Appellant on a Prior Occasion

{¶37} The fourth assignment of error relates to photographs of appellant in a gray

sweat suit taken on a prior occasion, which the state introduced as exhibits after several

witnesses testified that appellant wore a gray sweatshirt or hoodie on the night of the

incident. Appellant argues that this type clothing is too generic to constitute identity

evidence and, therefore, the photographs were irrelevant and inadmissible under Evid.R.

402 (“Evidence which is not relevant is not admissible.”). Appellant confuses

admissibility of evidence and weight of evidence. The photographs of a defendant in an

outfit similar to one several witnesses had seen him wearing on the night of the incident is

certainly relevant and admissible, and it is up to the trier of fact to determine the weight to

be given to this identity evidence. In any event, any prejudicial effect of that identity

evidence was eliminated when appellant took the stand and admitted to shooting the

victim. The fourth assignment of error is overruled. Investigating Officer’s Testimony

{¶38} Under the fifth assignment of error, appellant claims Det. Thomas Lynch

provided improper hearsay testimony when he testified regarding what he learned during

his investigation from Elizabeth Torres and Dwain Powell about the identity of the

shooter.

{¶39} A law enforcement officer’s statements offered into evidence to explain the

officer’s next investigative step is generally not hearsay. State v. Thomas,

,

(1980). Appellant cites State v. Ricks,

,

,

, in support of his claim. In Ricks, the Supreme Court

of Ohio held that the admission of an accomplice’s statements tying the defendant to the

crime, through the testimony of an investigating officer, violated the Confrontation

Clause because the statements were unfairly prejudicial under Evid.R. 403 and the

nonhearsay reason given for introducing the statements was a pretext for connecting the

defendant to the crime. Ricks is not applicable here. Unlike Ricks, the identity of the

perpetrator was not an issue in this case, because appellant admitted to the shooting. The

fifth assignment of error lacks merit.

Ineffective Assistance of Counsel

{¶40} Under the sixth assignment of error, appellant claims his trial counsel

provided ineffective assistance of counsel by introducing prejudicial photographs of him

holding a revolver, a weapon not seen on the night of the shooting. {¶41} In order to establish a claim of ineffective assistance of counsel, appellant

must prove (1) his counsel was deficient in some aspect of his representation, and (2)

there is a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different. Strickland v. Washington,

,

,

(1984). Counsel’s performance will not be deemed ineffective unless the

performance is proven to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance. State v.

Iacona,

,

(2001). In evaluating a claim of

ineffective assistance of counsel, we are mindful that there are countless ways for an

attorney to provide effective assistance in a given case and we must give great deference

to counsel’s performance.

. Trial tactics and strategies do not

constitute a denial of effective assistance of counsel. State v. Gooden, 8th Dist.

Cuyahoga No. 88174,

, citing State v. Clayton,

,

(1980).

{¶42} Here, the transcript reflects that during the state’s examination of Det.

Lynch, the state attempted to have the detective testify to several photos retrieved from

appellant’s cell phones showing him holding a revolver. Because no witnesses had

testified to appellant’s use of a revolver on the night of the incident, defense counsel

objected to the introduction of these photographs and the trial court found these

photographs prejudicial and ruled that these photographs could not be introduced through

the detective’s testimony. Subsequently, when appellant took the stand in his own defense, defense counsel introduced these photographs and elicited testimony from

appellant to show that the photographs were taken long before the shooting and that

appellant did not own the weapon but only took the photographs with the weapon so that

he could post them on the social media to boost his image and to impress women.

{¶43} We will not second guess appellant’s trial counsel’s tactical decision to have

appellant provide testimony regarding the photographs. Once appellant decided to

testify, the state would likely use the photographs in its cross-examination of him. His

counsel apparently chose to “draw the sting” out of the likely revelation of these

photographs during the state’s cross-examination of appellant by bringing out such

evidence early, on direct examination. See State v. Tyler,

,

(1990). This was not an unreasonable tactical decision, and counsel’s

conduct did not fall below the standard of reasonable representation. Further, appellant

fails to demonstrate there is a reasonable probability that the outcome of the trial would

have been different. This case hinges on whether the jury believed appellant shot the

victim in self-defense. The exclusion of the photographs of appellant holding a weapon

not related to the shooting incident from the trial would not have changed the outcome of

the trial. The sixth assignment of error is without error.

{¶44} Judgment affirmed.

It is ordered that appellee recover of appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

_________________________________________ TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and EILEEN A. GALLAGHER, J., CONCUR