State v. Ellis

[Cite as State v. Ellis, 2014-Ohio-116.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99830

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

L’DDARYL ELLIS
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-568532-A

BEFORE: Blackmon, J., S. Gallagher, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: January 16, 2014
 -i-

ATTORNEY FOR APPELLANT

Eric M. Levy
55 Public Square
Cleveland, Ohio 44113

L’Ddaryl Ellis
Inmate No. 641-151
Trumbull Correctional Institution
P. O. Box 901
Leavittsburg, Ohio 44430

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Scott Zarzycki
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

{¶1} Appellant L’Ddaryl Ellis appeals his convictions following a bench trial and

assigns the following errors for our review:

I. The trial court erred to the prejudice of appellant when it threatened
State’s witness A.B. Tipton forcing him to testify consistent with his police
report with no regard for the truth.

II. The trial court erred in finding appellant guilty of any charges where the
evidence presented at trial was insufficient to support any of appellant’s
convictions.

III. The trial court erred in each charge where appellant was found guilty as
the manifest weight of the evidence did not support appellant’s convictions.

IV. The trial court erred in failing to merge count nine felonious assault and
count fourteen aggravated riot for purposes of sentencing.

V. The trial court erred in convicting appellant of felonious assaults without
first considering the inferior offense of aggravated assault.

VI. The trial court erred in finding appellant guilty of any charges without
first considering self-defense which appellant had proven by a
preponderance of the evidence through the questioning of the state’s
witnesses.

VII. The trial court erred when it reviewed the trial transcript prior to
reaching its verdict in a bench trial.

VIII. Appellant was denied his Sixth Amendment right to counsel due to the
ineffective assistance of trial counsel.

{¶2} Having reviewed the record and pertinent law, we affirm all of Ellis’s

convictions, except the aggravated riot. The apposite facts follow.

{¶3} On November 29, 2012, the Cuyahoga County Grand Jury returned a

14-count indictment against Ellis relating to two separate shooting incidents. Relative to

the first incident, the grand jury indicted Ellis on one count of discharge of a firearm on or
near prohibited premises and two counts of felonious assault. All three counts contained

one and three-year firearm specifications.

{¶4} Relative to the second incident, wherein a resident of East 95th Street who

had been looking through her window, was struck and killed by a bullet. The grand jury

indicted Ellis on one count of discharge of a firearm on or near prohibited premises, one

count of aggravated murder, one count of murder, and seven counts of felonious assault.

The grand jury also indicted Ellis on one count of aggravated riot with purpose to

commit or facilitate the commission of any offense of violence. All 11 counts contained

one and three-year firearm specifications.

{¶5} On December 3, 2012, Ellis pleaded not guilty at the arraignment.

Subsequently, numerous pretrials were conducted. Eventually, Ellis executed a waiver

of his right to a jury trial, and on March 6, 2013, a bench trial commenced.

Bench Trial

{¶6} Seventeen witnesses testified at the trial. A number of these witnesses

participated in the shooting incidents, were indicted, pleaded guilty to various charges,

and were already serving their sentences at the time of the trial. Several residents of East

95th Street, who were not related to members of either group involved in the gunfight,

also testified at the trial.

{¶7} A.B. Tipton, one of the individuals who participated in the gunfight, was

indicted, pleaded guilty, and had begun serving his sentence, testified at the trial.

Tipton stated that on the night of March 13, 2012, he, Devon Mittman, Brennon Isom,
Jimeel Germany, and Daymond Haywood, were visiting each other in the area of East 95th

Street and Quincy Avenue.

{¶8} Tipton testified that at some point, he and Germany decided to ride their

bicycles to a Marathon gas station located at East 89th Street and Buckeye Road to

purchase tobacco products and chips. On the way, he passed by Ellis and three other

men, all of whom he recognized from seeing in and around the neighborhood. Tipton

testified that as he passed by he noticed that Ellis had a gun in his hand.

{¶9} Tipton testified that on their way back from the gas station he noticed that

Ellis still had the gun visible. Tipton stated that shortly after they passed Ellis and his

companions, he heard gun shots in the air, prompting him and Germany to run for cover,

returning back to East 95th Street to regroup with the others.

{¶10} Tipton stated that 10-15 minutes later, Ellis and his companions arrived at

the south end of East 95th Street near Quebec Avenue, and immediately began shooting.

Tipton stated that Ellis was shooting at him from the left side of the street and continued

shooting as he came closer. Tipton exchanged gunfire, but Ellis took cover behind a

parked Dodge Charger and a tree.

{¶11} Germany, who accompanied Tipton to the gas station on the night in

question, testified that he saw Ellis with a gun as they went to and from the gas station.

Germany testified that on the way back, shortly after they had passed Ellis and his

companions, he heard someone say “get from over here” and fired a shot in the air.

{¶12} Germany and Tipton hastened back to East 95th Street and armed

themselves. Germany also testified that a short time later, Ellis and his companions
arrived on East 95th Street near Quebec Avenue and immediately began shooting.

Germany returned fire, but only shot in the air.

{¶13} Roderick Burnett, a companion of Ellis on the night in question, testified

that Tipton and Germany did in fact pass by on their way to and from the gas station.

Burnett stated that Ellis had a black semiautomatic handgun that he heard him shoot in the

air shortly after Tipton and Germany passed the second time. Burnett turned around

when he heard the gun shot and saw Ellis putting the gun away. Burnett testified that he

believed it was a semiautomatic handgun.

{¶14} Burnett testified that some time later as he, Ellis, and the others were

returning to visit someone named Chuck, they took a shortcut through East 97th Street.

Burnett testified that when they got to the top of East 95th Street, they saw a black car

stopped in the middle of the street, gunfire erupted, and heard bullets coming in their

direction. Burnett, Ellis, and the others hid behind a parked car located on the left side of

the street, and then later ran back in the direction from where they came.

{¶15} Detective Ignatius Sowa of the Cleveland Police Homicide Unit testified

that he was assigned to investigate the shooting. Detective Sowa testified that after the

shooting, the police responded to the house of Elissa Hereford, who had been looking

through her window at the gunfight. They found Hereford’s lifeless body in a pool of

blood that trailed to an adjoining room, where they found a bullet hole in the wooden

window frame. Detective Sowa testified that the coroner had determined that the

gunshot penetrated Hereford’s upper thigh and traveled to her femoral artery causing her

to bleed out and die.
 {¶16} Detective Sowa recovered numerous shell casings from the vicinity of 2323,

2315, and 2303 East 95th Street. Detective Sowa testified that of the many shell casings

recovered, eight shell casings were from a 9 mm handgun that was never recovered.

Detective Sowa stated that the eight shell casing were located in a direct line to

Hereford’s house across the street.

{¶17} Detective James Kooser of the Cleveland Police Department testified that he

was assigned to the firearm forensic examination unit. Detective Kooser recovered

several handguns from the defendants involved in the shootings and also recovered

numerous shell casings from the scene. Detective Kooser testified that a morgue pellet

recovered from Hereford’s body matched the eight shell casings fired from the 9 mm

handgun that was never recovered.

{¶18} At the close of the state’s case, the trial court granted Ellis’s motion for

acquittal on six counts. The trial court later found Ellis not guilty of aggravated murder,

but considered the lesser included offense of murder, as well as involuntary manslaughter,

and found him guilty of involuntary manslaughter with the attached firearm

specifications. In addition, the trial court found Ellis guilty of murder, two counts of

felonious assault, and the single count of aggravated riot, all with the attached firearm

specifications.

{¶19} On April 15, 2013, Ellis appeared for sentencing. The trial court merged

the involuntary manslaughter, felonious assault, and aggravated riot counts with the

murder count for sentencing purposes. The trial court then imposed a prison term of 15

years to life to be served after Ellis served three years for the firearm specifications.
 Admonishing the Witness

{¶20} In the first assigned error, Ellis argues he was prejudiced when the trial

court threatened Tipton, a state’s witness, causing him to testify in conformity with his

police report. Ellis’s argument is based on the premise that “coercion of a witness by the

state can affect the due process rights of the defendant.” State v. Asher, 112 Ohio

App.3d 646, 650, 679 N.E.2d 1147 (1st Dist.1996).

{¶21} In the instant case, the record indicates that immediately after Tipton took

the stand, he became uncooperative and refused to answer the prosecutor’s questions.

The prosecutor asked the trial court to instruct Tipton to answer the questions. After the

trial court explained that Tipton had been subpoenaed, placed under oath, and was

required to answer the questions, the following exchange took place:

The Witness: * * * [T]his was not part of my plea bargain, so why do I have to do
it?

The Court: Well, because we have some rules of procedure and some
laws in this State that says that if a party to a lawsuit properly
subpoenas someone, they have to come to court and they have
to answer questions. So whether this was part of a plea
bargain or not, you’re one of the millions of people who could
be subpoenaed in to court to tell what they know about a set
of circumstances.

So no one is saying you have to testify because of a plea
bargain, we’re saying you have to testify because that’s what
the law requires. You were properly subpoenaed. There is
some reason to believe that you have testimony relevant to
these proceedings. It’s my duty under State law to require
that you answer the questions. Tr. 46-47.

{¶22} Tipton proceeded to grudgingly answer a few questions then the following

exchange took place:
The Witness: Because why do I have to do this? And — I got my time already.
This is not benefitting me in no circumstances.
***

The Court: You got charged with a crime, you took a plea bargain and got
sent to prison. This has nothing to do with that.

***

The Witness: I’m done with this. I’m done with this. I got my time, this is not by
the benefit of me, so I — I’m done.

***

The Court: Well, sir, I’m ordering you to answer the gentleman’s
questions. And when the Court orders you to do something,
which you are required to do, then it places you in contempt
of court. Now, I don’t have any desire to hold you in
contempt of court, what I really desire is that you do what
every citizen of our community is called upon to do, when
they’re under a proper subpoena, and that is to answer the
questions. * * * So I’m ordering you to answer the
gentleman’s question.

The Witness: I don’t remember what happened.

***

The Court: Now, can I just make it clear to you, Mr. Tipton, that it is no
solution to this solution to this problem for you to give
evidence which is not truthful. That only opens up the
opportunity for you to get in more trouble.

Right now we’re only talking about the Court holding you in
contempt, and being able to punish you summarily for
refusing to answer questions put to you.

***

So I’m not threatening you with anything of the sort, because
I don’t bring charges, other than, of course, holding people in
direct contempt. But I’m just — I just want to mention,
when I hear you say you won’t testify, and then you change it
to: Oh, I don’t know anything about it, I don’t remember, that
 doesn’t sound like a solution to me, that sounds like a bigger
problem than what you start with. So I’m instructing you and
I have to, under Ohio law, require that you answer the
gentleman’s questions. Tr. 55-57.

{¶23} In the instant case, the above excerpts do not support Ellis’s assertion that

the trial court coerced Tipton into testifying in conformity with his police statement. Our

review of the record reveals that the trial court repeatedly explained that a subpoenaed

witness had a duty to answer the questions posed. In the face of Tipton’s stated reason

for not wanting to testify, namely that there was no benefit to him, the trial court

repeatedly explained that his duty to testify had nothing to do with his plea bargain with

the state.

{¶24} Despite Ellis’s assertions that Tipton’s testimony was procured by threats,

the trial court specifically told Tipton that it was not threatening him, but just instructing

him as required under the law. We find nothing in the above exchange or elsewhere in

the record that is indicative of coercion. As such, we find no merit in this assertion.

Accordingly, we overrule the first assigned error.

Sufficiency of Evidence

{¶25} In the second assigned error, Ellis argues the state failed to produce

sufficient evidence to support his convictions.

{¶26} The sufficiency of the evidence standard of review is set forth in State v.

Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus:

Pursuant to Criminal Rule 29(A), a court shall not order an entry of
judgment of acquittal if the evidence is such that reasonable minds can
reach different conclusions as to whether each material element of a crime
has been proved beyond a reasonable doubt.
See also State v. Apanovitch, 33 Ohio St.3d 19, 23, 514 N.E.2d 394 (1987); State v.

Davis, 49 Ohio App.3d 109, 113, 550 N.E.2d 966 (1988).

{¶27} Bridgeman must be interpreted in light of the sufficiency test outlined in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
submitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable
doubt. 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. (Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560, followed.)

{¶28} In the instant case, both Tipton and Germany testified that they saw Ellis

with a gun as they went to and from the gas station. Tipton testified that he heard a shot

fired into the air after they passed the second time. Germany testified that he saw

someone shoot in the air as they passed. Ellis’s own companion, Burnett testified that

Ellis was in possession of a handgun when they were near the gas station. All three men,

one of which was Ellis’s own companion, placed a gun in Ellis’s possession in the first

shooting incident.

{¶29} All three men also placed a gun in Ellis’s possession in the second incident,

occurring 10-15 minutes after the first, that claimed Hereford’s life. Tipton testified that

Ellis and his companions arrived at the southern end of East 95th Street and immediately

began shooting. Tipton testified that Ellis was shooting at him and that Ellis was using a

Dodge Charger as cover from the gunshots he returned. Germany, as well as Burnett,
corroborated Tipton’s testimony that Ellis was among the group of men shooting at them

on East 95th Street, thus placing a gun in Ellis’s possession.

{¶30} We can also conclude from the physical evidence collected that Ellis was in

possession of a handgun on East 95th Street and that handgun resulted in Hereford’s

death. Detective Sowa testified that eight of the shell casings recovered from the scene

came from the same 9 mm handgun and the shell casings did not match any of the

handguns recovered from the other defendants. Detective Sowa testified that the shell

casings were found in a location in a direct line to Hereford’s house. Detective Kooser

testified that the morgue pellet recovered matched those coming from the same 9 mm

hand gun. Pivotally, Burnett, testified that he believed the black handgun Ellis had in

his possession was a semiautomatic.

{¶31} Although the evidence is largely circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. In re N.S., 8th Dist. Cuyahoga

No. 93153, 2010-Ohio-1057, citing State v. Basham, 5th Dist. Muskingum No.

CT2007-0010, 2007-Ohio-6995. As such, in reviewing the evidence in a light most

favorable to the prosecution, we find that any rational trier of fact would conclude, from

the testimonies of the witnesses and the physical evidence collected, that Ellis, while

attempting to cause physical harm or death to the members of the other group, caused

Hereford’s death. Thus, there exists sufficient evidence to sustain all of Ellis’s

convictions, except that for aggravated riot.

{¶32} The trial court found Ellis guilty of aggravated riot in violation of R.C.

2917.02(A)(2), that provides that “[n]o person shall participate with four or more others
in a course of disorderly conduct * * * [w]ith purpose to commit or facilitate the

commission of any offense of violence * * *.”

{¶33} However, it is uncontested that when Ellis participated in the shooting

incident on East 95th Street, he did so in the company of three fellow gang members.

Because R.C. 2917.02(A)(2) requires the person charged with aggravated riot to have

participated with four or more others in a course of disorderly conduct, the state did not

meet the basic element of this charge. See In re Jesse S., 129 Ohio App.3d 394, 717

N.E.2d 1143 (6th Dist. 1998). As such, the trial court should not have found Ellis guilty

of aggravated riot.

{¶34} Accordingly, we sustain the second assigned error as it relates to the

aggravated riot conviction, but overrule the assigned error on the remaining convictions.

Manifest Weight of Evidence

{¶35} In the third assigned error, Ellis argues his convictions were against the

manifest weight of the evidence.

{¶36} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

the Ohio Supreme Court recently addressed the standard of review for a criminal manifest

weight challenge, as follows:

The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins, 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541. In
Thompkins, the court distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these concepts differ both
qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court 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.
Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s? We
 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. Id. at 387, 678 N.E.2d 541. “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.” Id. at 387,
678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211,
72 L.Ed.2d 652 (1982).

{¶37} As discussed in the second assigned error, the state presented sufficient

evidence to sustain all of Ellis’s convictions, except that for aggravated riot.

Nonetheless, Ellis argues, among other things, that the state’s witnesses, specifically

Tipton’s testimony, was not credible.

{¶38} However, this court is mindful that the weight of the evidence and the

credibility of witnesses are primarily for the trier of fact and a reviewing court must not

reverse a verdict where the trier of fact could reasonably conclude from substantial

evidence that the state has proven the offense beyond a reasonable doubt. State v.

Chavez, 8th Dist. Cuyahoga No. 99436, 2013-Ohio-4700, citing State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraphs one and two of the syllabus.

{¶39} Further, because the factfinder has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder’s determinations of credibility. State v.

Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, citing State v. Lawson, 2d

Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709 (Aug. 22, 1997). Thus, the

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witness.
 {¶40} While acknowledging the presence of testimony from individuals that were

also indicted, that pleaded guilty to various charges, and that were serving sentences for

their part in the incidents, the logical conclusion from the evidence presented is that the

bullet that struck and ultimately killed Hereford was fired from the gun that Ellis was

shooting at Tipton. As previously discussed, although several handguns were recovered

from the other defendants, none of them discharged the eight shell casings from the

unrecovered handgun that fired the morgue pellet removed from Hereford.

{¶41} Thus, despite Ellis’s assertion that Tipton’s testimony was not credible, the

trial court, who had the opportunity to see and hear Tipton and the other witnesses, had

the peculiar advantage to competently credit or discount the testimony of a particular

witness. Further, as discussed in the first assigned error, Tipton did not even want to

testify in the matter. Thus, based on the foregoing, we cannot say that the trial court

clearly lost its way and created such a manifest miscarriage of justice that the convictions

are against the manifest weight of the evidence. Accordingly, we overrule the third

assigned error.

Allied Offenses

{¶42} In the fourth assigned error, Ellis argues the trial court erred in failing to

merge the felonious assault charge and the aggravated riot charge. In the second

assigned error, we affirmed all of Ellis’s convictions except the aggravated riot;

consequently this charge renders the fourth assigned error moot.

Lesser Included Offense
 {¶43} In the fifth assigned error, Ellis argues that the trial court erred by

convicting him of felonious assault without first considering a conviction for a lesser

included offense of aggravated assault. Ellis argues that evidence of the existence of

mitigating circumstances that he allegedly acted under the influence of sudden passion

brought on by provocation occasioned by Tipton allegedly first firing on him warranted a

conviction for the lesser offense.

{¶44} In the instant case, there is no indication in the record that the trial court did

not consider the alleged provocation and sudden passion and decided that the evidence

was insufficient to convict on the lesser offense of aggravated assault. Nothing in the

record indicates that Ellis was under the influence of sudden passion or a sudden fit of

rage.

{¶45} The evidence established that Ellis and his fellow gang members trekked

from East 89th Street and Buckeye Road over to East 95th Street and Quebec Avenue and

immediately started shooting at Tipton and his companions. Ellis and his companion

started shooting when they arrived at the southern tip of East 95th Street and continued

shooting as they made their way down to almost the middle of the block and ultimately in

a direct line to the victim’s house. From this evidence, we fail to see when and where

Ellis was provoked, thus warranting a consideration of aggravated assault.

{¶46} In a bench trial, a trial court is presumed to know the law and to have

considered lesser offenses supported by the evidence. State v. Rister, 6th Dist. Lucas No.

L-09-1191, 2012-Ohio-516, ¶ 15; In re D.L.B., 12th Dist. Fayette No. CA2011-09-019,
2012-Ohio-3045, ¶ 22-23. As such, the trial court did not err when it convicted Ellis of

felonious assault. Accordingly, we overrule the fifth assigned error.

Self-Defense

{¶47} In the sixth assigned error, Ellis argues the trial court erred by convicting

him of the charges without considering self-defense.

{¶48} Self-defense is an affirmative defense, and thus, the accused has the

burden to prove it by a preponderance of the evidence. State v. Tabasso, 8th Dist.

Cuyahoga No. 98248, 2012-Ohio-5747, citing State v. Smith, 10th Dist. Franklin No.

04AP-189, 2004-Ohio-6608, ¶ 16.

{¶49} Consideration of self-defense is proper when the evidence shows that (1) the

defendant was not at fault in creating the situation giving rise to the affray; (2) the

defendant had a bona fide belief that he was in imminent danger of great bodily harm and

that his only means of escape from such danger was in the use of such force; and (3) the

defendant must not have violated any duty to retreat or avoid danger. State v. Owens, 8th

Dist. Cuyahoga No. 98165, 2012-Ohio-5887, citing State v. Williford, 49 Ohio St.3d 247,

551 N.E.2d 1279 (1990). Further, the elements of self-defense are cumulative and, if the

defendant failed to prove any one of the elements by a preponderance of the evidence, he

failed to demonstrate that he acted in self-defense. Id.

{¶50} In the instant case, nothing in the record supports any consideration of a

self-defense claim. At the outset, Ellis cannot even establish that he was not at fault in

creating the situation. Tipton, Germany, and Burnett testified that Ellis first fired shots

on East 89th Street. After Tipton and Germany fled, Ellis and his companions arrived on
East 95th Street within 10-15 minutes and immediately began shooting. Thus, there is

nothing in the record to negate that Ellis was not at fault.

{¶51} Given that the elements of self-defense are cumulative, Ellis, having failed

to prove that he was not at fault in creating the situation, has failed to establish that the

trial court should have considered self-defense. Accordingly, we overrule the sixth

assigned error.

Trial Court’s Review of the Transcript

{¶52} In the seventh assigned error, Ellis argues the trial court erred when it

reviewed the transcript testimony before rendering the verdict. In support of his

position, Ellis cites State v. Rogan, 94 Ohio App.3d 140, 640 N.E.2d 535 (2d Dist. 1994),

where the court stated that:

[A]n authenticated transcript can be used by a jury as a listening aid while
playing the tape of a recorded conversation, but the transcript cannot be
admitted into evidence. The use of the transcript as a listening aid is
permissible only after proper cautionary instructions have been given by the
trial court. We conclude that it is within the sound discretion of the trial
court to adopt proper procedures to prevent the jury from using the
transcript during deliberations.

{¶53} In the instant case, unlike Rogan, this was a bench trial. After all the

evidence had been presented , the trial court indicated that it had taken 90 pages of

handwritten notes, but it wanted to review the testimony of Tipton, Germany, and

Burnett.

{¶54} We conclude that the trial court after hearing the testimony of those

witnesses, simply wanted to refresh its memory before rendering the verdict. We

reminded Ellis that under a well-established Ohio law it is ordinarily presumed that in a
bench trial in a criminal case the court considered only the relevant, material, and

competent evidence in arriving at its judgment unless it affirmatively appeared to the

contrary. State v. Tate, 8th Dist. Cuyahoga No. 97804, 2013-Ohio-570, citing State v.

Eley, 77 Ohio St.3d 174, 181, 1996-Ohio-323, 672 N.E.2d 640 (1996), citing State v.

Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987). Nothing in the record before us

indicates anything to the contrary. Accordingly, we overrule the seventh assigned error.

Ineffective Assistance of Counsel

{¶55} In the eighth assigned error, Ellis argues he was denied the effective

assistance of counsel.

{¶56} To succeed on a claim of ineffective assistance, a defendant must establish

that counsel’s performance was deficient and that the defendant was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

Counsel will only be considered deficient if his or her conduct fell below an objective

standard of reasonableness. Strickland at 688.

{¶57} When reviewing counsel’s performance, this court must be highly

deferential and “must indulge a strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.” Id. at 689. To establish resulting

prejudice, a defendant must show that the outcome of the proceedings would have been

different but for counsel’s deficient performance. Id. at 694.

{¶58} Within this assigned error, Ellis contends he received ineffective assistance

when his counsel failed to object to Tipton’s alleged hearsay testimony, failed to object
numerous times throughout the trial, failed to impeach certain testimony, and failed to

explain the ramification of waiving a jury.

{¶59} In addressing Ellis’s claim that counsel failed to explain the ramification of

waiving a jury, we note matters pertaining to discussions Ellis had with his trial attorneys

are not properly raised in a direct appeal because they are not part of the record. See State

v. Rowe, 3d Dist. Seneca No. 13-10-14, 2011-Ohio-5739, ¶ 20-27; State v. Vess, 6th Dist.

Ottawa No. OT-10-038, 2011-Ohio-3118, ¶ 21. Further, the trial court inquired of Ellis

about the written waiver he executed and he indicated that he understood that he was

waiving a jury trial and would be tried by the bench.

{¶60} The remaining issues Ellis raises with respect to his trial counsel’s actions

constitute matters of trial strategy. Trial strategy and even debatable trial tactics do not

establish ineffective assistance of counsel. State v. Rosa, 8th Dist. Cuyahoga No. 96587,

2012-Ohio-1042, citing State v. Conway, 109 Ohio St.3d 412, 2006 Ohio 2815, 848

N.E.2d 810, ¶ 111.

{¶61} Ellis cites a number of instances that he deems counsel should have

objected. However, as the Ohio Supreme Court explained in State v. Johnson, 112 Ohio

St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 139-140, such tactical decisions do not

give rise to a claim for ineffective assistance:

[F]ailure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel. To prevail on such a claim, a defendant
must first show that there was a substantial violation of any of defense
counsel’s essential duties to his client and, second, that he was materially
prejudiced by counsel’s ineffectiveness. State v. Holloway (1988), 38 Ohio
St.3d 239, 244, 527 N.E.2d 831. * * *
 [E]xperienced trial counsel learn that objections to each potentially
objectionable event could actually act to their party’s detriment.
* * * In light of this, any single failure to object usually cannot be said to
have been error unless the evidence sought is so prejudicial * * * that
failure to object essentially defaults the case to the state. Otherwise,
defense counsel must so consistently fail to use objections, despite
numerous and clear reasons for doing so, that counsel’s failure cannot
reasonably have been said to have been part of a trial strategy or tactical
choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d 754, 774. Accord
State v. Campbell (1994), 69 Ohio St.3d 38, 52-53, 1994-Ohio-492, 630
N.E.2d 339.

{¶62} The record reveals no such failure by Ellis’s trial counsel. Ellis has not

demonstrated that his trial counsels performance fell below objective standards of

reasonable representation or that he was prejudiced as a result. Accordingly, we overrule

the eighth assigned error.

{¶63} Judgment affirmed in part, reversed in part, and remanded to the trial court

to vacate Ellis’s conviction for aggravated riot.

It is ordered that appellee and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. Case remanded to the trial court for actions consistent with this opinion.

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

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR