State v. Armstrong

[Cite as State v. Armstrong, 2011-Ohio-661.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09-MA-204
)
ROBERT T. ARMSTRONG, ) OPINION
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CR744

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503-1426

For Defendant-Appellant Attorney Dennis Day Lager
209 S. Chestnut Street, Suite 400
Ravenna, Ohio 44266

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro

Dated: February 7, 2011
[Cite as State v. Armstrong, 2011-Ohio-661.]
DONOFRIO, J.

{¶1} Defendant-appellant, Robert Armstrong, appeals from a Mahoning
County Common Pleas Court judgment convicting him of attempted murder and an
accompanying firearm specification following a jury trial.
{¶2} During the afternoon of June 23, 2009, Eric Weaver was outside of a
house on Monroe Street in Campbell when he saw a man whom he identified as
appellant standing in the driveway. According to Weaver, appellant asked Weaver if
he had any problems with him to which Weaver responded “no.” When Weaver
turned to enter the house appellant pulled out a gun and started shooting him. As a
result, Weaver lost a kidney and half of his intestines and suffered fractures to his
face, wrist, and shoulder.
{¶3} A Mahoning County grand jury initially indicted appellant on felonious
assault charges. It later issued a superseding indictment charging him with
attempted murder, a first-degree felony in violation of R.C. 2903.02(A)(D) and R.C.
2923.02(A)(E)(1); two counts of complicity to commit attempted murder, first-degree
felonies in violation of R.C. 2903.02(A)(D), R.C. 2923.02(A)(E)(1), and R.C.
2923.03(A)(2)(F); and accompanying firearm specifications in violation of R.C.
2941.145(A).
{¶4} The matter proceeded to a jury trial. The state dismissed the complicity
charges and prosecuted only the attempted murder charge along with the firearm
specification. The jury returned a guilty verdict. The court subsequently sentenced
appellant to ten years for attempted murder and three actual years on the firearm
specification to be served prior to and consecutive to the ten-year sentence for a total
of 13 years in prison. Appellant filed a timely notice of appeal on December 10, 2009.
{¶5} Appellant raises three assignments of error, the first of which states:
{¶6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT BY DENYING DEFENDANT-APPELLANT’S CRIMINAL RULE 29
MOTION FOR DIRECTED VERDICT OF ACQUITTAL, MADE AT THE CLOSE OF
THE STATE’S CASE AND AGAIN AT THE CLOSE OF ALL THE EVIDENCE, WHEN
THERE WAS INSUFFICIENT EVIDENCE TO PROVE THE ELEMENTS OF THE
CRIME OF ATTEMPTED MURDER AND FIREARM SPECIFICATIONS IN
 -2-

VIOLATION OF R.C. 2903.02(A), R.C. 2923.02(A)(E)(1) AND R.C. 2941.145(A), BY
PROOF BEYOND A REASONABLE DOUBT.”
{¶7} Appellant argues here that plaintiff-appellee, the State of Ohio, failed to
establish he was the one who shot Weaver. Therefore, appellant contends that his
conviction was not supported by sufficient evidence. He claims that Detective
Sergeant John Rusnak never testified that Weaver identified anyone from the photo
lineup as the person who shot him. He asserts that Detective Rusnak only testified
that Weaver pointed to a picture of him without communicating anything more.
Appellant further asserts that ATF Agent Robert Daniels likewise did not clearly
testify that Weaver identified him as the shooter. Finally, appellant contends that
Weaver did not identify him in court as the person who shot him.
{¶8} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith (1997), 80 Ohio St.3d 89, 113. In
essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d
380, 386. Whether the evidence is legally sufficient to sustain a verdict is a question
of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. Smith, 80 Ohio St.3d at 113.
{¶9} The jury convicted appellant of attempted murder in violation of R.C.
2903.02(A) and R.C. 2923.02(A). R.C. 2903.02(A) provides in relevant part that no
person shall purposely cause the death of another. R.C. 2923.02(A) defines an
attempt: “No person, purposely or knowingly, and when purpose or knowledge is
sufficient culpability for the commission of an offense, shall engage in conduct that, if
successful, would constitute or result in the offense.”
{¶10} The only element appellant takes issue with is his identity. He contends
that the evidence was insufficient to prove that he was the one who shot Weaver.
The evidence at trial was as follows.
 -3-

{¶11} Detective Sergeant David Taybus was the first officer to respond to
Weaver’s shooting. Detective Taybus testified that as he arrived on the scene, he
noticed a gray van in the driveway with its door open. (Tr. 101). He also observed
Weaver laying in the front yard bleeding. (Tr. 101). Detective Taybus saw that
Weaver suffered between five to seven gunshot wounds. (Tr. 104). Detective
Taybus asked Weaver who shot him. (Tr. 105). Weaver responded, “Armstrong shot
me.” (Tr. 105). At the time, Detective Taybus was alone with Weaver, but he stated
that Weaver later repeated this statement when Detective Rusnak appeared on the
scene. (Tr. 105-106).
{¶12} Detective Taybus went on to testify that while he was tending to
Weaver and before Detective Rusnak arrived, someone moved the van out of the
driveway but he did not see who did it. (Tr. 106). He stated that he later saw the van
parked on the road approximately 60 feet away with its doors locked. (Tr. 106-107).
Detective Rusnak testified that he ran the license plates and the van came back
registered to appellant. (Tr. 107). He had the van towed to the police department.
(Tr. 107).
{¶13} Detective Rusnak also responded to Weaver’s shooting. He heard
Detective Taybus ask Weaver who did this to him and Weaver responded,
“Armstrong.” (Tr. 125). He testified Detective Taybus asked for the shooter’s full
name and Weaver stated, “Robert Armstrong.” (Tr. 125).
{¶14} Detective Rusnak testified that a few months after the shooting, he went
to the hospital with Agent Davis to show Weaver a six-person photo lineup. (Tr. 126).
At the time, Weaver’s jaw was still wired shut so he could not speak. (Tr. 126).
Detective Rusnak asked Weaver to point to the person that shot him. (Tr. 126).
Weaver pointed to appellant’s photograph. (Tr. 126). Detective Rusnak stated that
Agent Davis then circled, initialed, and dated appellant’s photo. (Tr. 126). He
testified that Weaver never identified anyone else as the person who shot him. (Tr.
129). And Detective Rusnak identified appellant in court. (Tr. 129).
{¶15} On cross examination, Detective Rusnak stated that Weaver did identify
 -4-

another person, Elijah Johnson, in another photo lineup as having been involved in
the incident. (Tr. 139-40). Detective Rusnak testified that the police thought the
motive for the shooting could have been related to a prior shooting where Johnson
was believed to have killed Weaver’s friend, Dwayne Adams. (Tr. 139-40).
{¶16} Additionally, Detective Rusnak read from a Bureau of Criminal
Identification and Investigation (BCI) report analyzing two 9mm shell casings taken
from the scene and stating that they were consistent with having been fired from a
Glock 9mm. (Tr. 135-37). Based on the report, Detective Rusnak also stated, it was
possible that there may have been two guns involved. (Tr. 137). On redirect,
Detective Rusnak testified that he had arrested appellant previously for having a
Glock handgun. (Tr. 143). He stated, however, the gun was never returned to
appellant. (Tr. 145).
{¶17} Agent Davis testified next. His only involvement in the case was
accompanying Detective Rusnak to show Weaver the photo lineup. Agent Davis
testified that he asked Weaver if he could pick out from the photo lineup the
individual who shot him. (Tr. 152). At that point, Agent Davis stated, Weaver
selected appellant. (Tr. 152). When asked if he saw the man in the courtroom that
Weaver picked out, Agent Davis stated that he was “assuming” it was the gentleman
at the defense table. (Tr. 154).
{¶18} Weaver was the last state’s witness to testify. He first admitted to
having a history of dealing drugs. (Tr. 161). Weaver stated that he has known
appellant for approximately six years. (Tr. 161). He then identified appellant in the
courtroom. (Tr. 162). Weaver testified that he saw appellant the day before the
shooting. (Tr. 162). He stated that he asked appellant if something was going on
with him and Elijah Johnson trying to “do something” to him. (Tr. 162). Appellant told
him “no” and they walked away from each other. (Tr. 162).
{¶19} Weaver testified that the next day he noticed appellant in the driveway
of the house on Monroe Street. (Tr. 165). Weaver stated that appellant asked him if
he had any problems with him, to which Weaver responded, “no.” (Tr. 165). Weaver
 -5-

stated that he then turned to walk into the house when appellant pulled out a gun and
started shooting him. (Tr. 165). Weaver testified that he never saw anyone there
with a gun other than appellant. (Tr. 167).
{¶20} On cross examination, Weaver testified that just the day before the
shooting he saw appellant and thought the two were still friendly with each other. (Tr.
177). And when asked why he thought appellant shot him, Weaver stated, “I still
don’t know why.” (Tr. 179). He could only speculate that appellant thought Weaver
had a problem with him because he had asked about Johnson the day before. (Tr.
179).
{¶21} Appellant testified in his own defense. He stated that on the morning of
the shooting he went to visit a girl who lived near where Weaver was shot. (Tr. 191-
92). While he was waiting for her, he parked his van in a parking lot on Jackson
Street. (Tr. 192). Appellant stated that he then received a call from his friend Jerry
who asked to borrow a saw he had in his van. (Tr. 192). He testified that Jerry came
to meet him and the two eventually heard gunshots. (Tr. 194). Appellant stated they
jumped into Jerry’s car and drove to Jerry’s house, leaving his locked van behind.
(Tr. 194-95). Appellant later learned that there were rumors circulating that he shot
Weaver. (Tr. 196). And when his mother told him the police were looking for him,
appellant turned himself in. (Tr. 197). Appellant denied having anything to do with
Weaver’s shooting. (Tr. 198).
{¶22} This evidence, especially when viewed in the light most favorable to the
state, is more than sufficient to identify appellant as Weaver’s shooter. Shortly after
being shot, while he lay bleeding, Weaver told Detectives Taybus and Rusnak more
than once that “Armstrong” shot him. And while he was still in the hospital with his
jaw wired shut, Weaver picked appellant’s picture out of a photo lineup when asked
by Detective Rusnak and Agent Davis if he could identify the man who shot him.
Weaver identified appellant in court. And he testified that it was appellant who shot
him.
{¶23} Weaver never wavered in his identification of appellant and never
 -6-

indicated that anyone other than appellant shot him. Furthermore, Weaver and
appellant had known each other for approximately six years. Accordingly, appellant’s
first assignment of error is without merit.
{¶24} Appellant’s second assignment of error states:
{¶25} “THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE
ERROR BY IMPROPERLY INSTRUCTING THE JURY ON THE LAW OF
CIRCUMSTANTIAL EVIDENCE, ALL OF WHICH CONSTITUTED PLAIN AND
STRUCTURAL ERROR IN THE TRIAL PROCEEDINGS, THUS DEPRIVING
DEFENDANT-APPELLANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS
OF LAW.”
{¶26} In instructing the jury on circumstantial evidence, the trial court stated:
{¶27} “Circumstantial evidence is different. Circumstantial evidence is the
proof of facts or circumstances by direct evidence from which you may then
reasonably infer other related or connected facts which naturally and logically follow
according to the common experience of mankind.
{¶28} “To infer or to make an inference is to reach a reasonable conclusion of
fact which you may, but are not required to, make from other facts that were
established by direct evidence. Whether an inference is made rests entirely with you.
{¶29} “So if you were to go out to Boardman Street - - this is Boardman Street
on the side here. In fact, my office used to be right there at 20 West Boardman
Street. * * * But all along Boardman Street are parking meters. If you had someone
come into the courtroom and tell you that they walked out to Boardman Street and
they saw some parking meters there, that the glass was broken and shattered by the
base of the parking meter, and a couple of coins laying by the parking meter, and
some guys was running down the street with a hammer in his hand, and a fistful of
coins, the question would be asked whether or not anyone saw that person break
into the parking meters, and the answer would be no. But you could still logically,
reasonably, and legally conclude that that person running down the street with the
hammer and the fistful of coins was the guy that broke into the parking meters and
 -7-

took the money from the parking meters. That’s how you use circumstantial
evidence, if you choose to make an inference.” (Tr. 257-59).
{¶30} In this assignment of error, appellant contends that the court’s jury
instruction on circumstantial evidence was in error. Not only does appellant allege
the instruction, which his trial counsel failed to object to, was in error, he contends
that it was a structural error. Appellant argues that the court’s example mirrored the
evidence received by the jury. He asserts that the example given by the court was so
analogous to the evidence that the court basically told the jury that the circumstantial
evidence provided in this case was sufficient to identify appellant and convict him.
{¶31} Appellant did not object to the jury instruction. Absent plain error, the
failure to object to a jury instruction constitutes a waiver of the issue on appeal. State
v. Underwood (1983), 3 Ohio St.3d 12, at the syllabus; Crim.R. 30. Plain error should
be invoked only to prevent a clear miscarriage of justice. Id. at 14. Plain error is one
in which but for the error, the outcome would have been different. State v. Long
(1978), 53 Ohio St.2d 91, 97.
{¶32} Appellant asserts that this assignment of error should be reviewed for
structural error. A structural error is characterized by the entire trial from beginning to
end being clearly affected. State v. Alexander, 7th Dist. No. 03-CA-789, 2004-Ohio-
5525, at ¶27, citing State v. Rector, 7th Dist. No. 01-AP-758, 2003-Ohio-5438, at ¶11
and Arizona v. Fulminante (1991), 499 U.S. 270, 309-10. “‘Structural error is a
constitutional deprivation which affects the framework of the whole trial rather than
simply an error in the trial process itself.’” Alexander, at ¶27, quoting Rector, at ¶11.
Structural error affects a defendant’s substantial rights, even absent a showing of
prejudice, and therefore automatically requires reversal. State v. Martin, 103 Ohio
St.3d 385, 2004-Ohio-5471, at ¶53.
{¶33} Appellant contends that a structural error analysis applies here in place
of a plain error analysis. But these two analyses do not present “either or” options.
Quoting the United States Supreme Court, the Ohio Supreme Court observed that
the fact that an error may be structural does not preclude a plain error analysis:
 -8-

{¶34} “‘Rule 52(a) of the Federal Rules of Criminal Procedure, which governs
direct appeals from judgments of conviction in the federal system, provides that “[a]ny
error, defect, irregularity or variance which does not affect substantial rights shall be
disregarded.” Although this Rule by its terms applies to all errors where a proper
objection is made at trial, we have recognized a limited class of fundamental
constitutional errors that “defy analysis by ‘harmless error’ standards.” Arizona v.
Fulminante, 499 U.S. 279, 309 [111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331] (1991);
see Chapman v. California, 386 U.S. 23 [87 S.Ct. 824, 827-828, 17 L.Ed.2d 705,
710] (1967). Errors of this type are so intrinsically harmful as to require automatic
reversal (i.e., “affect substantial rights”) without regard to their effect on the outcome.
For all other constitutional errors, reviewing courts must apply Rule 52(a)'s harmless-
error analysis and must “disregar[d]” errors that are harmless “beyond a reasonable
doubt.” Id., at 24 [87 S.Ct. at 828, 17 L.Ed.2d at 711].
{¶35} “‘* * *
{¶36} “‘We have recognized that “most constitutional errors can be harmless.”
Fulminante, supra, at 306 [111 S.Ct. at 1263, 113 L.Ed.2d at 329]. ‘[I]f the defendant
had counsel and was tried by an impartial adjudicator, there is a strong presumption
that any other constitutiona[l] errors that may have occurred are subject to harmless-
error analysis.’ Rose v. Clark, 478 U.S. 570, 579 [106 S.Ct. 3101, 3106, 92 L.Ed.2d
460, 471] (1986).” State v. Hill (2001), 92 Ohio St.3d 191, 196-97, quoting Neder v.
United States (1999), 527 U.S. 1, 7-9.
{¶37} In examining the jury instructions we must review the court's charge as
a whole, not in isolation, in determining whether the jury was properly instructed.
State v. Burchfield (1993), 66 Ohio St.3d 261, 262.
{¶38} Appellant contends that the trial court’s example of circumstantial
evidence was improper because it was analogous to the facts of the case. This
simply is not the case. In the trial court’s example, the offender was identified solely
based on the circumstantial evidence presented. This case presented the exact
opposite scenario. Here appellant was not identified by circumstantial evidence.
 -9-

Instead, we have eyewitness testimony from the victim himself identifying appellant
as the man who shot him. The court’s instruction to the jury was not an error at all,
let alone an error that permeated the entire trial. Thus, there was no structural error.
{¶39} Likewise, because the court did not err in instructing the jury, appellant
cannot demonstrate prejudice and, consequently, cannot demonstrate plain error.
{¶40} Accordingly, appellant’s second assignment of error is without merit.
{¶41} Appellant’s third assignment of error states:
{¶42} “DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL AS GUARANTEED BY ARTICLE I § 10 OF THE CONSTITUTION OF
THE STATE OF OHIO AND BY THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE CONSTITUTION OF THE UNITED STATES BY REASON OF COUNSEL’S
CUMULATIVE FAILURES TO ADVOCATE DEFENDANT-APPELLANT’S CAUSE
AND TO BRING TO BEAR SUCH SKILL AND KNOWLEDGE AS WOULD RENDER
CONFIDENCE IN THE FAIRNESS OF DEFENDANT-APPELLANT’S TRIAL AND
ITS RESULTING VERDICT.”
{¶43} Appellant argues that his trial counsel was ineffective based on five
different claims, which we will separately address.
{¶44} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052; State v. Bradley
(1989), 42 Ohio St.3d 136, at paragraph two of the syllabus. Second, appellant must
demonstrate that he was prejudiced by counsel's performance. Id. To show that he
has been prejudiced by counsel's deficient performance, appellant must prove that,
but for counsel's errors, the result of the trial would have been different. Bradley, 42
Ohio St.3d at paragraph three of the syllabus.
{¶45} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun (1999), 86 Ohio St.3d 279, 289. In Ohio, a licensed
attorney is presumed competent. Id.
 - 10 -

{¶46} First, appellant argues that his counsel failed to object to two non-
responsive answers by Detective Rusnak that cast his character in a bad light. To
one question during cross examination, Detective Rusnak added, without solicitation,
that he once arrested appellant for gun possession. (Tr. 135). To another question
on re-cross, Detective Rusnak indicated that the gun was stolen and that appellant
possessed it along with some crack cocaine. (Tr. 145).
{¶47} Appellant testified in his own defense. And before testifying regarding
his alibi and asserting his innocence, counsel elicited testimony from appellant
regarding his background. This necessarily included appellant’s past guilty pleas to
gun and drug charges. (Tr. 189). It was likely counsel’s strategy to be open and
honest with the jury about appellant’s past. Counsel could have used appellant’s
prior guilty pleas as a way to demonstrate that appellant is the type of person who
owns up to his bad acts, if in fact he is guilty. Thus, since he knew that this
information was going to come out in appellant’s testimony, it is reasonable to
conclude that counsel did not take issue with Detective Rusnak’s testimony so as not
to call particular attention to these facts. This falls within the realm of trial strategy.
We will not second guess trial counsel's tactics. Trial tactics are generally not subject
to question by a reviewing court. State v. Fryling (1992), 85 Ohio App.3d 557, 562.
{¶48} Second, appellant points out that during Detective Rusnak’s cross
examination his counsel asked the detective to reference a BCI firearms analysis
report in order to identify the type of firearm used to shoot Weaver. (Tr. 135-36).
Detective Rusnak read from the report and stated the suspected firearm used was a
Glock 9mm semi-automatic pistol. (Tr. 136-37). Appellant notes that the state did
not call any BCI witnesses to testify regarding the firearm report, and therefore this
evidence would not have been brought to the jury’s attention but for counsel’s
introduction of it. Appellant claims this evidence was prejudicial to him.
{¶49} What appellant does not point out is that the information his counsel
elicited was potentially helpful to his case. In addition to testifying that a Glock was
used to shoot Weaver, Detective Rusnak also testified that he had confiscated a
 - 11 -

Glock from appellant sometime prior to the shooting. (Tr. 145). Appellant’s counsel
may have been trying to show that appellant no longer owned the type of gun used to
shoot Weaver. Once again, this was a matter of trial strategy.
{¶50} Third, appellant contends his counsel was ineffective for eliciting
Detective Rusnak’s testimony that the type of gun which appellant had illegally
possessed in the past was a Glock. (Tr. 143). He also asserts here that counsel was
ineffective for failing to object to questions posed to him on cross examination by the
prosecutor asking if he supported his children and bringing to light the fact that
appellant had driver’s license suspensions for failure to pay child support. (Tr. 200-
201). And appellant argues that his counsel should have objected to questions by
the prosecutor asking him particulars about his prior gun conviction. (Tr. 202).
{¶51} Firstly, while Detective Rusnak testified he arrested appellant for having
a Glock in the past, he also testified that this gun was not returned to appellant. (Tr.
145). This evidence, therefore, tends to help appellant’s case by showing that he did
not have this gun in his possession when Weaver was shot. Secondly, as to the child
support questions and the questions about his prior gun conviction, appellant brought
these issues to light himself when he testified as to his criminal background and
stated that he pays child support. (Tr. 187-90). Thus, the trial court would not have
sustained an objection to the prosecutor’s questions regarding these issues since
appellant opened the door during his direct testimony.
{¶52} Fourth, appellant asserts his counsel was ineffective for failing to object
during the state’s closing argument to the following comments:
{¶53} “You heard Officer Rusnak testify that he sent those shell casings to
BCI, the state laboratory, that they couldn’t make an exact match but they were able
to identify based on markings on the shell from the hammer, from the pin, the firing
pin. That was from 9mm, probably a Glock.
{¶54} “Ladies and gentlemen, handguns of that quality are like a car. You
grow up. We like Fords. We like GM. We like Pontiacs. Well, if you got your
druthers, if you are a Glock man and you go to prison with a Glock, chances are if
 - 12 -

you are going to try to kill somebody, you are going to use a Glock. The shells
indicated a Glock. His testimony -- Armstrong’s testimony was when I had the drugs
and that gun, it was a Glock. Stolen from Miller Rod and Gun. Stolen from Miller
Rod and Gun. August of this year.” (Tr. 234-35).
{¶55} Parties are generally afforded wide latitude in closing arguments. State
v. Spivey (Jan. 13, 1997), 7th Dist. No. 89-CA-172; State v. Smith (1984), 14 Ohio
St.3d 13, 14. Whether the prosecutor’s inference was a reasonable one to make is
debatable. But while the prosecutor’s comment may have been inappropriate, it was
not prejudicial especially in light of the fact that this was an isolated comment in an
otherwise proper closing argument. Additionally, counsel may have still been relying
on the fact that Detective Rusnak testified he did not return the Glock to appellant
and the following inference that, therefore, appellant no longer owned a Glock.
{¶56} Finally, appellant claims his counsel was ineffective for his failure to
object to the jury instruction on circumstantial evidence as addressed in his second
assignment of error.
{¶57} As discussed above, the court’s circumstantial evidence instruction was
not in error nor did it prejudice appellant. Therefore, counsel was not ineffective for
failing to object to it.
{¶58} Based on the foregoing, appellant has not demonstrated any instances
of ineffective assistance of counsel. Accordingly, appellant’s third assignment of
error is without merit.
{¶59} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Vukovich, .J., concurs.

DeGenaro, J., concurs.