State v. White

[Cite as State v. White, 2022-Ohio-2130.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110452
v. :

TREAL WHITE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 23, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-646377-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assisting Prosecuting
Attorney, for appellee.

Robert A. Dixon, for appellant.

EMANUELLA D. GROVES, J.:

Defendant-appellant, Treal White (“White”), appeals his conviction

following a bench trial. For the reasons set forth below, we affirm.
Facts and Procedural History

In December 2019, a grand jury indicted White on one count of

aggravated murder, one count of murder, one count of attempted murder, two

counts of felonious assault, and one count of discharge of a firearm on or near

prohibited premises. All counts contained one-year and three-year firearm

specifications. White elected to waive his right to a jury trial and a bench trial

commenced on March 22, 2021, where the facts elicited are as follows.

On September 21, 2019, White shot 25-year-old Tauvarsion “Shon”

Waller (“Waller”) five times with an AR-15 assault rifle, killing him. Further, Tyrone

Laney (“Laney”) sustained shots to the buttocks and hand during the shooting.

White justified his actions by claiming he acted in self-defense.

White, Waller, and several other friends were hanging out, drinking

and smoking marijuana in a vacant lot on Alhambra in the city of Cleveland. The

vacant lot was next door to the house where Alisha Ashford (“Ashford”) was staying

at the time. Although Ashford had concerns about the gathering of people next to

her house, she described the group as laughing and having fun.

According to White, things took a turn when someone who had stolen

from him the week before showed up. Waller kept goading White to fight this

person, to show he could stand up for himself. Nonetheless, White refused to fight.

Waller punched White in the chest when he refused. According to White, this was

the first time he and Waller fought in any way despite knowing each other since

2017. The punch knocked the wind out of White. White punched back once in
retaliation. Waller punched White again, then White backed away, saying he did not

want to fight. Waller responded by punching White two more times before someone

broke up the fight.

Ashford heard a verbal confrontation between White and Waller about

“slap-boxing.” At that time, they were in front of her house, and she could see them

outside of her front window. Ashford saw Waller start to walk away from White. As

Waller was walking away, Ashford saw White go to the back of a nearby car, grab a

gun, and start shooting at Waller. Once the shooting started, Ashford threw herself

to the floor, presumably to avoid being in the line of fire. After things appeared to

settle down, Ashford got up and saw Waller lying on the ground and saw a car drive

over his body.

White presented a different version of what occurred. According to

White, he walked away from Waller intending to walk home. He saw a friend sitting

in a parked car nearby and stopped to ask for a ride. It was at that point that he

noticed Waller approaching him. Waller was about 10-12 feet away. White did not

remember how it happened, but he grabbed an AR-15 that was in the back seat of

the car and told Waller to back up. Waller was unarmed. According to White, Waller

became mad when White pulled out the rifle and kept coming closer. White told

Waller to back up and started backing up himself. Waller kept coming, and White

fired the first shot toward Waller’s leg. He shot two more times because Waller kept

coming. White shot a fourth time and saw Waller’s arm move. Finally, he shot

Waller in the face because he felt he had to do it to stop Waller from advancing. At
some point, he realized that Laney was firing at him. White believed Laney fired

about three times. White then took off running and ducked into a garage off

Rudyard and Kipling. He eventually left the garage, leaving the AR-15 behind, and

ran home.

When police arrived on Alhambra, everyone had gone from the vacant

lot except Laney who was seated beside Waller’s body. Laney had sustained shots

to his buttocks and hand. Police attempted to administer first aid until EMS arrived.

Laney refused to give more than basic information and refused multiple requests to

be interviewed.

Five large caliber bullet casings were found on both sides of the street,

in front of and near Ashford’s home. All of the casings were fired from the AR-15.

There was also evidence that another weapon had been fired. Waller was shot five

times, in no particular order, once in the face, once in the chest, once in each arm,

and once in one of his toes. Further, Waller had a tire mark on his left arm.

It is unclear how White was identified as a suspect, but Ashford picked

him out of a photo array shortly after the shooting. White was subsequently

interviewed by police, where he denied being on Alhambra on the date of the

shooting, and denied any knowledge of the shooting. However, DNA evidence

collected from the AR-15 also linked White to the shooting.

Approximately six months before trial, the state produced an expert

report regarding trace evidence pursuant to discovery. Among other things, it

addressed the expert’s analysis of the muzzle-to-target distance involved in Waller’s
shooting. The muzzle-to-target distance is a determination of the distance between

the end of a firearm, i.e., the muzzle, to the target, which was Waller. The expert

report concluded there was evidence that the shot to Waller’s chest occurred at an

intermediate muzzle-to-target distance. The report defined “intermediate” as

suggesting “that the muzzle of the firearm was located between approximately 1 foot

and approximately 5 feet from the target surface when the firearm was discharged.”

However, the report included a disclaimer indicating that the conclusions in the

report were generalized to handguns.

At the bench trial, the state’s trace evidence witness testified in

agreement with the trace evidence report that the evidence suggested an

intermediate muzzle-to-target distance. Although not included in the report given

in discovery, the expert opined that for a long gun, e.g., a rifle, like the one used in

this case, he would estimate the distance to be around ten feet. White’s counsel did

not object to this testimony, nor did he cross-examine the witness.

Subsequently, the state used the expert’s testimony to challenge

White’s claim of self-defense. The state also highlighted the ten-foot distance in

closing arguments.

Ultimately, the trial court found that the state proved beyond a

reasonable doubt that White did not use deadly force in self-defense. The court

found White not guilty of aggravated murder but guilty of the lesser included offense

of murder under R.C. 2903.02(A). The trial court also found White guilty of murder

under R.C. 2903.02(B), two counts of felonious assault, and discharge of a firearm
on or near prohibited premises. The trial court found White guilty of all the

associated one-year and three-year firearm specifications with each count as well.

However, the trial court found White not guilty of the attempted murder charge and

the specifications associated with that charge.

On March 31, 2021, the trial court sentenced White to a total prison

term of life imprisonment with the possibility of parole in 27 to 28.5 years.

On April 13, 2021, White filed a motion for new trial. On April 23,

2021, while the motion for new trial was still pending, White filed a notice of appeal.

On June 21, the trial court denied the motion for new trial.

On December 10, 2021, White filed a motion for limited remand in this

court in order to allow the trial court to appropriately address the motion for new

trial, assuming the trial court did not have jurisdiction to rule. This court granted

the motion. White’s trial counsel moved for the appointment of new counsel. New

counsel was appointed for White and a hearing was scheduled for January 20, 2022.

However, at that hearing, White indicated that he had concerns about his appointed

counsel’s representation.1 The trial court allowed appointed counsel to withdraw.

The trial court then ruled on the motions filed by counsel. The trial court denied the

motion for a new trial.

White appeals and assigns the following errors for our review.

1 White learned that one of the prosecutors who tried his case had quit the
prosecutor’s office and was sharing office space with his appointed counsel. Despite
assurances that the two did not work together, White was uncomfortable with the
arrangement and wanted new counsel.
 Assignment of Error No. 1

The defendant was denied due process of law and a fair trial due to
violation of Crim.R. 16(K) by the state.

Assignment of Error No. 2

The appellant was denied his Sixth Amendment right to effective
assistance of counsel due to the action or inaction of counsel below.

Assignment of Error No. 3

The lower court erred and abused its discretion in overruling the
defense motion for new trial.

Assignment of Error No. 4

The verdict and judgment below must be vacated due to prosecutorial
misconduct violation of Mr. White’s rights pursuant to the Sixth
Amendment to the Constitution of the United States.

Assignment of Error No. 5

The verdict and judgment below finding the appellant guilty of murder
pursuant to R.C. 2903.02(B) was based on legally insufficient evidence.

Assignment of Error No. 6

The verdict and judgment below finding the appellant guilty of murder
pursuant to R.C. 2903.02(B) was against the manifest weight of the
evidence.

Law and Analysis

For ease of analysis, we will address the assignments of error out of

order.

Sufficiency of the Evidence

In the fifth assignment of error, White argues that his conviction for

murder pursuant to R.C. 2903.02(B) was based on insufficient evidence.
Specifically, White challenges the trial court’s finding that the state proved beyond

a reasonable doubt that White did not use deadly force in self-defense.

“A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state met its burden of production.” State

v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Sufficiency of the

evidence involves a review of the evidence admitted at trial and a determination of

‘“whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.”’ State v. Goins, 8th Dist. Cuyahoga

No. 109497, 2021-Ohio-1299, ¶ 13, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. We must determine, “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.” Id. The question is not ‘“whether the state’s evidence is to be

believed, but whether, if believed, the evidence against a defendant would support a

conviction.”’ Id., quoting Thompkins at 390.

In order for the appellant to be convicted of murder under R.C.

2903.02(B), the state had to prove beyond a reasonable doubt that White caused the

death of Waller as a proximate result of committing or attempting to commit an

offense of violence that was a felony of the first or second degree. R.C. 2903.02(B).2

2R.C. 2903.02(B) provides that no person shall cause the death of another as a
proximate result of the offender’s committing or attempting to commit an offense of
 However, under R.C. 2901.05, a person is permitted to act in self-

defense. State v. Jackson, 8th Dist. Cuyahoga No. 108493, 2020-Ohio-1606, ¶ 16,

citing R.C. 2901.05(B)(1). Essentially, if any evidence is presented at trial that tends

to support that the defendant used force in self-defense, the state must prove beyond

a reasonable doubt that the accused did not use that force in self-defense. Id., citing

R.C. 2901.05(B)(1).

In order to demonstrate the inapplicability of self-defense, the state

must prove beyond a reasonable doubt any one of the following,

(1) that the defendant was at fault in creating the situation giving rise
to the affray; (2) that the defendant lacked a bona fide belief that he was
in imminent danger of death or great bodily harm or that another
means of escape from such danger existed negating the need for the use
of deadly force; or (3) that the defendant violated a duty to retreat or
avoid the danger.

(Emphasis sic.) State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-Ohio-2037,

¶ 14.

Sufficiency is a test of adequacy. Fairview Park v. Peah, 8th Dist.

Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 38, citing Thompkins, 78 Ohio St.3d at

386, 678 N.E.2d 541. When looking at the adequacy of the evidence to support a

criminal conviction, we construe the evidence in a light most favorable to the

prosecution to determine whether a rational trier of fact could have found the

essential elements of the offense proven beyond a reasonable doubt. Id., citing

Jenks, 61 Ohio St.3d at 574, N.E.2d 492, paragraph two of the syllabus. In analyzing

violence that is a felony of the first or second degree and that is not a violation of section
2903.03 or 2903.04 of the Revised Code.
self-defense, “‘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 * * *

beyond a reasonable doubt’” that the defendant was not acting in self-defense. State

v. Vandergriff, 1st Dist. Hamilton No. C-200282, 2021-Ohio-3230, ¶ 10, citing State

v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting

Jenkins at paragraph two of the syllabus.

In the instant case, there was overwhelming evidence of White’s guilt.

It is undisputed that White shot Waller killing him, meeting the elements of R.C.

2903.02. In addition, Waller was unarmed when White shot him. Further,

according to Ashford, White grabbed the rifle as Waller was walking away from him.

That testimony, if believed, would prove that White was both at fault for creating the

situation giving rise to the shooting and that he lacked a bona fide belief that he was

in imminent danger of death or great bodily harm.

Additionally, White’s testimony disproved his self-defense claim.

Even if White’s testimony were believed and Waller was advancing on him, there

was no evidence that placed White in fear of imminent danger of death or great

bodily harm. According to White, he and Waller had been friends and never fought

until the day of the shooting. If we believe White, Waller punched White because he

felt that White should stand up for himself. At most, White painted a picture of

someone who was trying to, although misguidedly, toughen him up, not someone

intent on killing White. White’s response to pick up an assault rifle and shoot the

unarmed man five times far exceeded a defensive response to his perceived danger.
White’s disproportionate use of force belied his claim of self-defense. Given the

foregoing, there was sufficient evidence in the record, that if believed by the trier of

fact, supported a finding that White did not act in self-defense and supported a

finding of guilt on the murder charge beyond a reasonable doubt.

Accordingly, we overrule the fifth assignment of error.

Weight of the Evidence

In the sixth assignment of error, White argues that his conviction for

murder under R.C. 2903.02(B) was not supported by the greater weight of the

evidence. Again, White argues that the trial court’s finding that the state proved he

did not act in self-defense was not supported by the greater weight of the evidence.

“‘[W]eight of the evidence involves the inclination of the greater

amount of credible evidence.”’ State v. Harris, 8th Dist. Cuyahoga No. 109060,

2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.

Weight of the evidence relates to “‘the evidence’s effect of inducing belief.”’ Id.,

quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

¶ 25, citing Thompkins at 386-387. The reviewing court must consider all of the

evidence in the record, the reasonable inferences to made from it, and the credibility

of the witnesses to determine “‘whether in resolving conflicts in the evidence, the

factfinder clearly lost its way and created such a manifest miscarriage of justice

* * *.’” Id., citing Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172,

485 N.E.2d 717 (1st Dist.1983). Furthermore, in examining the manifest weight of

the evidence, “the weight to be given the evidence and the credibility of the witnesses
are primarily for the finder of fact.” State v. Metz, 2019-Ohio-4054, 146 N.E.3d

1190, ¶ 70 (8th Dist.), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of fact may “‘believe or disbelieve

any witness or accept part of what a witness says and reject the rest.”’ Id., quoting

State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). ‘“[A]n appellate court

may not substitute its own judgment for that of the finder of fact.”’ Harris at ¶ 33,

quoting State v. Maldonado, 8th Dist. Cuyahoga No. 108907, 2020-Ohio-5616,

¶ 40, citing State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

Clearly, White shot Waller and killed him meeting the elements of

R.C. 2903.02(B). The only question is whether he did so in self-defense. White

argues that other than the trace evidence expert’s testimony, there was no credible

evidence to refute his self-defense argument. We disagree.

Again, the evidence establishes that Waller was unarmed when White

shot him five times with an assault rifle. Even if Waller was advancing on White

when he was shot, the evidence established that at most, Waller intended to finish

the earlier fight, not that Waller intended to kill him or do great bodily harm.

Further, Ashford’s testimony placed the rifle in White’s hand as Waller was walking

away.

The trial court’s decision finding that the state disproved self-defense

was supported by the greater weight of the evidence. As such, the guilty finding for

murder was also supported by the greater weight of the evidence.

Accordingly, we overrule the sixth assignment of error.
Crim.R. 16(K) Violation

In the first assignment of error, White argues that he was denied due

process and the right to a fair trial when the state violated Crim.R. 16(K).

Specifically, White takes issue with the state expert’s testimony that the muzzle-to-

target distance was at least ten feet. White argues that the admission of that

testimony violated the rule and allowed the state to introduce evidence that did

irreparable harm to White’s self-defense claim. While we agree with White that the

state’s actions violated Crim.R. 16(K), we find that White has failed to establish that

he was prejudiced by the admission.

As a preliminary matter we note that White did not object to the

state’s expert testimony. “The failure to object to trial testimony forfeits all but plain

error.” Awan, 22 Ohio St.3d at 120, 489 N.E.2d 277, ¶ 20, citing State v. Rogers,

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23.

Under Crim.R. 52(B), we may notice plain errors affecting substantial

rights, even though those errors were not brought to the attention of the trial court.

“To constitute plain error, there must be: (1) an error, i.e., a deviation from a legal

rule, (2) that is plain or obvious, and (3) that affected substantial rights, i.e., affected

the outcome of the trial.” State v. Pratts, 8th Dist. Cuyahoga No. 104235, 2016-

Ohio-8053, ¶ 34, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002). A defendant is entitled to a plain error finding where it is established that

but for the error, the outcome of the trial clearly would have been different. State v.

Johnson, 8th Dist. Cuyahoga No. 99715, 2014-Ohio-2638, ¶ 94, citing State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978); State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d

274 (2001). Even if the plain error standard is met, courts should only notice it “with

the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Long, 53 Ohio St.2d at 91, 372 N.E.2d 804, paragraph three

of the syllabus.

In the instant case, the Supreme Court of Ohio has made clear that

under Crim.R. 16(K) where an expert witness formulates opinions that the state

intends to offer into evidence, those opinions must be set forth in the expert’s report

giving the defendant formal notice and the opportunity to seek other expert-opinion

testimony on the issue. State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153

N.E.3d 44, ¶ 57.

In the instant case, the state violated Crim.R. 16(K) by providing an

expert report that did not include conclusions it intended to use at trial. The state

witness’ testimony that the evidence suggested a muzzle-to-target distance of up to

ten feet was outside the scope of the report provided to the defense and thus was in

violation of Crim.R. 16(K).

Although the state argues that the testimony was hypothetical and

therefore permitted, we disagree. The state treated this “hypothetical” as fact by

repeatedly referencing it in the cross-examination of White to discredit his

testimony:

State: You will agree with me that despite your belief here that your life
was in danger that the first time a shot was fired that night was when
 you pulled up an AR-15 assault rifle and fired it at your good friend,
* * * Waller, correct?

White: I was trying to get him to back off and he wouldn’t. He kept
coming. Evidence show that.

State: You indicated to this Court that he was within two or three feet
of you, correct?

White: I said I didn’t know the approximate feet. I said I believe. I
don’t know.

State: What if I told you that trace evidence says, and the coroner
says —

White: Five feet.

State: — that the majority of those shots, all but one came from a
distance greater than 10 feet, correct?

White: I don’t — I don’t think it said that. I remember them saying
five.

State: No. They said with an assault rifle it would be up to 10 feet they
would expect to see gun powder on the area where it happened. Do you
remember that?

White: I don’t remember, but, yeah.

State: So for four of those five shots you were at least 10 feet away from
Shon Waller when you fired the gun, correct?

White: No. He was close to me. He wasn’t no 10 feet away from me.

(Tr. 562-563.)

The state further used the “hypothetical” distance in its closing

argument, repeatedly asking the court to consider the ten-foot distance in

determining whether White acted in self-defense.

The penalty for a Crim.R. 16(K) violation is exclusion of the testimony

at trial. Crim.R. 16(K) (“Failure to disclose the written report to opposing counsel
shall preclude the expert’s testimony at trial.”). See also Boaston, 160 Ohio St.3d

46, 2020-Ohio-1061, 153 N.E.3d 44, at ¶ 59 (It was error to allow expert’s testimony

on subjects “not set forth in a written report prepared in compliance with Crim.R.

16(K).”). The admission of the testimony satisfied the requirement under plain error

analysis that there be a violation of a legal rule. It was also “obvious” under the

second requirement of plain error. See Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (defining a “plain” error as one that is a clear violation under current law).

The third prong focuses on whether the error affected a substantial

right. In the context of a criminal trial, plain error that affects a substantial right is

an error that affects the outcome of the trial. Pratts, 8th Dist. Cuyahoga No. 104235,

2016-Ohio-8053, at ¶ 34. The burden is therefore on the appellant to demonstrate

that there was a reasonable probability that the error resulted in prejudice. Rogers,

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22, citing United States v.

Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

White has not established a reasonable probability that the erroneous

admission of evidence affected the result of the trial. Even if the expert testimony

had been excluded, there was overwhelming evidence of White’s guilt. Furthermore,

the remaining evidence after we remove the expert’s testimony disproved White’s

self-defense claim.

Additionally, this was a bench trial. As such, a trial judge is presumed

to know the law and to have applied it accordingly. N. Olmsted v. Rock, 8th Dist.

Cuyahoga No. 105566, 2018-Ohio-1084, ¶ 18, citing State v. Waters, 8th Dist.
Cuyahoga No. 87431, 2006-Ohio-4895, ¶ 11, citing State v. Eley, 77 Ohio St.3d 174,

180-181, 672 N.E.2d 640 (1996).

Moreover, there is evidence in the record that the trial court did not

consider the expert’s testimony. In the trial court’s ruling on White’s motion for new

trial, the trial court noted that “even if a portion of [the trace evidence expert’s]

testimony was excluded it would not have changed the verdict in this case * * * due

to the overwhelming evidence presented at trial.” The presumption that a trial court

only considered reliable, relevant, and competent evidence remains unless “it

affirmatively appears to the contrary.” Waters at ¶ 18, citing State v. Richey, 64

Ohio St.3d 353, 595 N.E.2d 915 (1992). Given the foregoing, we cannot say that the

testimony affected the outcome of the trial.

As there was overwhelming evidence of White’s guilt and no evidence

that the trial court considered improper evidence in making its decision, White has

failed to establish plain error.

Accordingly, we overrule the first assignment of error.

Prosecutorial Misconduct

In the fourth assignment of error, White argues that the state

committed prosecutorial misconduct that was a violation of his constitutional rights

when it violated Crim.R. 16(K) and that violation requires this court to vacate his

convictions. White’s failure to object to the testimony, however, subjects this claim

to plain error analysis. Failure to object to the admission of evidence at trial waives

all but plain error. State v. Chapman, 8th Dist. Cuyahoga No. 107375, 2019-Ohio-
1452, at ¶ 20, citing Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

at ¶ 23.

In the instant case White has failed to establish prosecutorial

misconduct. When an allegation of prosecutorial misconduct relates to Crim.R. 16,

reversible error is present “when there is a showing that (1) the prosecution’s failure

to disclose was willful, (2) disclosure of the information prior to trial would have

aided the accused’s defense, and (3) the accused suffered prejudice.” State v.

Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 45; citing

State v. Jackson, 107 Ohio St.3d 53, 79, 2005-Ohio-5981, 836 N.E.2d 1173, citing

State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983).

“‘Willful’ has been defined as ‘intent, purpose or design to injure.”’

State v. Thomas, 7th Dist. Belmont No. 17 BE 0028, 2018-Ohio-3768, ¶ 27, citing

State v. Litton, 12th Dist. Preble No. CA2016-04-005, 2016-Ohio-7913, ¶ 11, quoting

State v. Bowshier, 2d Dist. Clark No. 06-CA-41, 2007-Ohio-5364, ¶ 31. See also

Jackson at ¶ 78-79 (conduct not willful where state thought evidence was irrelevant

and therefore it was unnecessary to produce it to defense); Parson at 442 (conduct

not willful where state’s failure to produce evidence was negligent, the record did

not reflect willful misconduct, further, prosecutorial misconduct not present since

the defendant was not prejudiced by the admission of the testimony on rebuttal).

Since defense counsel did not object to the admission of the testimony, the trial court

did not have an opportunity to ascertain the reasons for the state’s Crim.R. 16(K)
violation.3 Nevertheless, the overwhelming evidence of White’s guilt precludes a

finding of prejudice. Furthermore, the trial court affirmatively stated that the

verdict would have been the same without the testimony. Therefore, White has

failed to establish that he was prejudiced by the state’s conduct.

Accordingly, we overrule the fourth assignment of error.

Ineffective Assistance of Counsel

In the second assignment of error White argues that he received

ineffective assistance of counsel when his lawyer failed to object to the admission of

the trace evidence expert’s testimony.

In order to establish ineffective assistance of counsel, a defendant

must demonstrate that (1) counsel’s performance was deficient and fell below an

objective standard of reasonableness and (2) that, but for counsel’s unprofessional

errors, there is a reasonable probability that the result of the trial would have been

different. State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216, ¶ 28 (8th Dist.), citing

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The defendant must satisfy both prongs of the test in order to prove

ineffective assistance of counsel. Harris, 8th Dist. Cuyahoga No. 109083, 2020-

Ohio-4138, at ¶ 28, citing Strickland at 687.

Under Ohio law, “every properly licensed attorney is presumed to be

competent.” State v. Knight, 8th Dist. Cuyahoga No. 109302, 2021-Ohio-3674, ¶ 47,

3 In its brief here and in its response to White’s allegation in his motion to new
trial, the state argued the trace evidence report was sufficient because it concluded the
muzzle-to-target distance was “intermediate.”
citing State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State

v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, when

“evaluating counsel’s performance on a claim of ineffective assistance counsel, the

court must give great deference to counsel’s performance and ‘indulge a strong

presumption’ that counsel’s performance ‘falls within the wide range of reasonable

professional assistance.’” Id., quoting Strickland at 689.

In the instant case, White’s trial counsel acknowledged that he did not

object to the trace evidence expert’s testimony, because he was surprised by it and

not prepared to cross-examine the witness as a result. While there is evidence in the

record that counsel should have been aware of the issues with the trace evidence

report before trial, we need not determine the first prong, since White has failed to

establish that he was prejudiced by counsel’s performance. This case was tried to

the bench, and the trial court specifically noted that its verdict was not based on the

inadmissible evidence. Additionally, the trial court is presumed not to have been

impacted by the admission of improper evidence or the prosecution’s continued

emphasis on it unless the record affirmatively demonstrates otherwise. Rock, 8th

Dist. Cuyahoga No. 105566, 2018-Ohio-1084, at ¶ 18, citing Waters, 8th Dist.

Cuyahoga No. 87431, 2006-Ohio-4895, at ¶ 11, citing Eley, 77 Ohio St.3d at 180-181,

672 N.E.2d 640.

Based on the foregoing, White has failed to establish that he was

prejudiced by his counsel’s conduct. Therefore, White has failed to establish that he

received ineffective assistance of counsel.
 Accordingly, we overrule the second assignment of error.

Motion for New Trial

Finally, in his third assignment of error and in his supplemental brief,

White argues that the trial court erred in denying his motion for new trial.

Specifically, White argues that it was error for the trial court to deny his motion

without a hearing and to proceed after his appointed counsel withdrew from the

case. Further, White argues that the trial court did not give due consideration to the

state’s Crim.R. 16(K) violation.

With respect to White’s argument that the trial court was required to

hold a hearing, we disagree. Courts have consistently found that the decision to hold

a hearing on a motion for new trial lies within the discretion of the trial court.

Furthermore, Crim.R. 33 does not mandate a hearing. State v. Cannon, 8th Dist.

Cuyahoga No. 103298, 2016-Ohio-3173, ¶ 16, citing State v. Smith, 30 Ohio App.3d

138, 139, 506 N.E.2d 1205 (9th Dist.1986). In the instant case, the trial court elected

to hold a hearing. However, when White requested new counsel, the trial court took

into consideration the deadline set by this court to address White’s motion and

instead ruled on the briefs already filed. This decision was well within its discretion.

White also argues that the trial court erred in considering the motions

when White was no longer represented. However, the trial court did not have a

hearing after counsel was excused. At no time was White without legal counsel

during any significant stages of the proceedings. The court’s decision was based

upon the written motions. Moreover, White has not argued that the motion for new
trial was incomplete or deficient. White has not demonstrated that he was

prejudiced by the trial court’s decision to rule on the written motions submitted by

counsel.

The trial court, therefore, did not err in deciding the issue on the

motions.

White raised several issues in his motion for new trial below, however,

he has limited his argument on appeal to whether the Crim.R. 16(K) violation and

its effects on White’s case warranted a new trial. The decision of whether or not to

grant a motion for a new trial is within the sound discretion of the trial court and

will not be overturned absent an abuse of that discretion. State v. Gilbert, 8th Dist.

Cuyahoga No. 106358, 2018-Ohio-3789, ¶ 25, citing State v. Schiebel, 55 Ohio St.3d

71, 76, 564 N.E.2d 54 (1990). An “abuse of discretion” is “more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983) quoting State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980).

In the instant case, White’s request for a new trial falls under Crim.R.

33(A)(2) and (3), which state:

(A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial
rights: * * *

(2) Misconduct of the jury, prosecuting attorney, or the witnesses for
the state;

(3) Accident or surprise which ordinary prudence could not have
guarded against; * * *.
 Under Crim.R. 33(A)(2) where misconduct is alleged, a court

conducts a two-step inquiry. State v. Heru, 9th Dist. Summit No. 24756, 2010-

Ohio-635, ¶ 2, citing State v. Herb, 167 Ohio App.3d 333, 2006-Ohio-2412, 855

N.E.2d 115, ¶ 6 (9th Dist.). First, did misconduct occur; second, did the misconduct

‘“materially prejudiced the defendant’s substantial rights.”’ Id., quoting Herb.

Again, we review the trial court’s findings for an abuse of discretion and will not

overturn a decision unless it is found. Id., citing Schiebel at paragraph one of the

syllabus.

As previously noted, White has failed to establish prosecutorial

misconduct, therefore we need not address the second prong of the test. White has

therefore failed to establish that he was entitled to a new trial under Crim.R.

33(A)(2).

White further alleges that he was blindsided due to the Crim.R. 16(K)

violation and the admission of the trace evidence expert’s testimony. Crim.R.

33(A)(3) permits a new trial on the grounds of “surprise which ordinary prudence

could not have guarded against”; when that surprise materially affected the

defendant’s substantial rights. Crim.R. 33. State v. LaMar, 95 Ohio St.3d 181,

2002-Ohio-2128, 767 N.E.2d 166, ¶ 82.

However, courts have found that a trial court acts well within its

discretion to deny a motion for new trial under Crim.R. 33(A)(3) where defense

counsel fails to raise the issue of surprise during trial. See State v. Samatar, 152

Ohio App.3d 311, 2003-Ohio-1639, 787 N.E.2d 691, ¶ 52 (10th Dist.); LaMar at
¶ 82-83. Since there was no objection, the trial court did not abuse its discretion in

denying the motion on this basis. Nonetheless, it has already been determined that

White’s substantial rights were not materially affected.

Accordingly, we overrule the third assignment of error.

Judgment affirmed.

It is ordered that appellee recover from 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.

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

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY