[Cite as State v. White, 2019-Ohio-4562.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              VINTON COUNTY

STATE OF OHIO,                  :
                                :   Case No. 19CA715
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
KEITH A. WHITE,                 :
                                :
     Defendant-Appellant.       :   Released: 11/01/19
_____________________________________________________________
                          APPEARANCES:

Timothy P. Gleeson, Logan, Ohio, for Appellant.

Trecia Kimes-Brown, Vinton County Prosecutor, and William L. Archer, Jr.,
Assistant Vinton County Prosecutor, McArthur, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Vinton County Court of Common Pleas

judgment entry convicting Appellant, Keith White, of felonious assault,

disrupting public services, and domestic violence.

        {¶2} On appeal, Appellant asserts (1) “[he] was denied his right to due

process and his right to compulsory attendance of a witness when the trial

court ruled he could not call the assistant prosecuting attorney as a witness,”

and (2) “[he] was denied his right to due process when his trial attorney
Vinton App. No. 19CA715                                                         2

provided ineffective assistance of counsel by failing to move the trial court

for White to appear before the jury in clothing other than a jail uniform.”

      {¶3} Based upon our review of the law and the record, we overrule

Appellant’s assignments of error and affirm the judgment of the trial court.

                         PROCEDURAL HISTORY

      {¶4} The State charged Appellant with attempted murder, felonious

assault, domestic violence, disrupting public service, and aggravated

menacing. Appellant pleaded not guilty to all charges. The case proceeded

to trial on all charges, except aggravated menacing.

      {¶5} Prior to Appellant’s trial, the court addressed Appellant’s

subpoena to compel the assistant prosecutor in this case to appear and bring

all notes and mental recollections from his conversation with Crystal Arthur

(“Ms. Arthur”), the victim in this case, regarding her purported claim that

Appellant took video/pictures of his attack.

      {¶6} Appellant argued that the assistant prosecutor’s testimony would

provide “Brady material. It’s constitutional.” Appellant’s counsel asserted

that the assistant prosecutor informed him that Ms. Arthur alleged Appellant

had recorded the assault of her with his cell phone. However, Appellant

claimed that the State had never produced video of the attack during

discovery. Therefore, Appellant argued, the only way to determine the
Vinton App. No. 19CA715                                                         3

content of that recording was through the testimony of the assistant

prosecutor.

      {¶7} In response, the State admitted that it had disclosed to

Appellant’s counsel that Ms. Arthur claimed there was a cell phone video of

Appellant’s assault of Ms. Arthur. The State further asserted that they

recovered the phone and shipped it off for review, but “[n]othing

materialized.” And, the State argued that it was nearly certain that it

informed defense counsel that the phone contained no video of the attack.

Finally, the prosecutor also argued that he had disclosed this information to

Appellant’s counsel in April, more than six months before the trial in

November, and yet Appellant did not raise this issue until trial.

      {¶8} Appellant’s counsel admitted that the prosecutor had informed

him that no recording existed, but he argued that “the only proof of that [no

video of the attack exists] is [the assistant prosecutor’s testimony].”

      {¶9} The trial court pointed out that the prosecutor had already

informed Appellant that there was nothing on the phone so the court didn’t

think that there was a genuine dispute to which the prosecutor could testify.

And, after confirming with the prosecution that Ms. Arthur was going to

testify, the court also pointed out that Appellant could cross-examine the

victim regarding the alleged videotaping.
Vinton App. No. 19CA715                                                         4

      {¶10} The trial court found that because the State had previously

disclosed to Appellant, albeit informally, that there was no recording on the

phone, there was no Brady violation because there was nothing that had been

withheld by the State. The court again noted that Appellant would have an

opportunity to cross-examine the victim regarding any alleged videotaping

of the alleged attack. The court stated: “And so then the question comes

back to whether, whether based on all of this taken together is a sufficient

reason, uh basically, to disqualify the prosecutor from presenting the case

from going forward with a trial.” The court found “there is not[,]” and

denied Appellant’s request to call the prosecutor as a witness for the defense.

      {¶11} Prior to trial, the State also raised a concern that Appellant was

dressed in prison clothes. Prior to voir dire and out of the jury’s presence,

the prosecutor brought to the attention of the court that the State had

concerns that the defendant was in prison clothes instead of street clothes for

his trial. However, Appellant’s counsel stated: “I have nothing to add to that

judge. I am not familiar with the case law to which [the prosecutor] is

referring.” The judge then stated: “All right. Very well then. Anything

further?” Both attorneys responded in the negative, and proceedings

continued.
Vinton App. No. 19CA715                                                        5

      {¶12} The State’s first witness at trial was Dr. Thanh Guyen, a trauma

surgeon at Grant Hospital in Columbus. He testified that on February 13,

2018, he treated Ms. Arthur for a skull fracture and bleeding in the brain,

which were caused by trauma to the head.

      {¶13} The State’s next witness, Ms. Arthur, testified that she moved

in with Appellant in June of 2017. Ms. Arthur described Appellant as her

best friend. She testified that “[life] was good.” However, she testified that

in the winter of 2018 finances became an issue in their relationship. Ms.

Arthur testified that during an argument over finances, Appellant hit her in

the mouth and then in her face, causing her to bleed. She testified that

Appellant laughed and that at some point she passed out. Ms. Arthur

testified that Appellant poured water on her face and then started kicking her

in the side, telling her to wake up. She testified that he said he was going to

kill her, grabbed her by the hair several times and even put her in the

bathtub, turned on the water, and held her head under water. She testified

that she tried to fight back, but was not strong enough. She testified that

Appellant had taken her phone and keys and that he even tried to strangle

her with an extension cord. Ms. Arthur testified that she finally got away

from him and called 911 on an old phone.
Vinton App. No. 19CA715                                                         6

      {¶14} Ms. Arthur testified that once the officers arrived they arrested

Appellant. She testified that an ambulance arrived and the emergency

medical technicians told her that she needed to go to the hospital. She

testified that she didn’t want to leave her car behind so she called her mother

and arranged for them to meet at the gas station. Ms. Arthur testified that

she pulled into the gas station, but the next thing she remembered was

waking up in the hospital. She testified that she did not recall being “life-

flighted” to Grant hospital in Columbus. She testified that she continues to

suffer “consistent” headaches, memory loss, problems with her vision, and

pain in her foot. Ms. Arthur then identified Appellant her assailant.

      {¶15} On cross examination, Ms. Arthur admitted that her testimony

was inconsistent with what she stated in her statement. She admitted that

there was no discussion in the statement that Appellant had attempted to

drown her in the bath tub. She also admitted that there was nothing in the

report about Appellant hitting her with a hammer, but she mentioned a

hammer attack in a second report. Finally, Appellant’s counsel asked Ms.

Arthur: “Okay. And do you, you indicated you recall alleging that

[Appellant] held you down, beat you and videoed the incident while it was

going on?” Ms. Arthur responded: “He said he was. I wasn’t on the other
Vinton App. No. 19CA715                                                        7

side of the phone. All I know is he had it in front of me while he was hitting

me.”

       {¶16} The State’s third witness was Vinton County Deputy Sheriff

Mark Cosgray. He testified that he responded to a domestic violence call at

43753 Covered Bridge Road. He testified that when he arrived he saw

Deputy Nick Trainer talking to Ms. Arthur in the yard. Deputy Cosgray

testified that he entered the house and both deputies arrested Appellant for

an existing warrant, and Deputy Trainer read Appellant his rights. Deputy

Cosgray testified that while he was transporting Appellant to the sheriff’s

office, Appellant admitted that he had struck Ms. Arthur with a crutch

because she had attacked him, causing him injury. Deputy Cosgray testified

that he took pictures of Appellant’s injuries.

       {¶17} Vinton County Deputy Sheriff Trainer was the State’s next

witness. He testified that he responded to Ms. Arthur’s 911 call and when

he arrived Ms. Arthur was limping toward him from the porch, she appeared

to have bruises on her body, and her makeup was running down her face

from crying. Deputy Trainer testified that Ms. Arthur told him that

Appellant had beaten her, and he was in the house. Deputy Trainer testified

that initially he called an ambulance because Ms. Arthur “seemed pretty

bruised up and her limp and everything.” Deputy Trainer testified that he
Vinton App. No. 19CA715                                                        8

went into the house and he found Appellant sitting on the couch. Deputy

Trainer testified that when they arrested Appellant he became agitated and

was “mouthing” the deputies. Deputy Trainer testified that Ms. Arthur told

him that Appellant had threatened her with a hand gun, shot gun, and a

sawed-off shot gun, which he located and collected. Deputy Trainer testified

that Ms. Arthur showed him a broken, bent crutch that she alleged Appellant

used to beat and choke her. Deputy Trainer testified that he took pictures of

the crutch and Ms. Arthur’s injuries (bruising and bloody lip). Deputy

Trainer testified that he and Deputy Cosgray told Ms. Arthur that she needed

to go to the hospital, but he said she was “adamant” about taking herself to

the hospital. Deputy Trainer and the emergency medical personnel packed

some of Ms. Arthur’s things and then put them in her car. Deputy Trainer

testified that he then let Ms. Arthur use his phone to contact a family

member and she made arrangements to meet them.

      {¶18} On cross examination, Deputy Trainer agreed that his report of

this incident was not entirely consistent with his testimony. Specifically,

Deputy Trainer testified that Ms. Arthur barely spoke to him the day of the

incident, but his report indicates that she was “screaming and crying.”

When asked if he recalled Ms. Arthur having any memory issues at the time,

Deputy Trainer testified she “had a hard time recollecting what all had
Vinton App. No. 19CA715                                                         9

occurred to me at that incident.” Deputy Trainer testified, clarifying that

Ms. Arthur packed her clothes into trash bags and then he and the

emergency medical personnel loaded those bags into Ms. Arthur’s car.

Deputy Trainer testified that he did not see the cord that Ms. Arthur alleged

Appellant used in an attempt to choke her. Deputy Trainer testified that Ms.

Arthur told him that the attack happened at 2 p.m., but his report stated it

happened at 3 p.m.

      {¶19} The State’s next witness was Kathryn Carter, an emergency

room nurse at Grant Medical Center. Nurse Carter testified that Ms. Arthur

was alert and oriented and the staff had administered “Nubian” (pain

medication) and NARCAN. Nurse Carter then reviewed Ms. Arthur’s

medical record from that visit, which admitted her on 2-13-2018 and

discharged her on 2-15-2018. She testified that it indicated that Ms. Arthur

was not intoxicated. She testified she could not state why Ms. Arthur was

given NARCAN, but that it can be given to reverse the effect of Nubian if a

patient gets too drowsy.

      {¶20} The State’s next witness was Ashley Cowgill, a speech

language pathologist. Ms. Cowgill evaluated Ms. Arthur during her hospital

visit for the assault. During her testimony, Ms. Cowgill read from a report

from Dr. Jonathan Pedrick who had evaluated Ms. Arthur. Reading from
Vinton App. No. 19CA715                                                      10

that report, Ms. Cowgill stated “Severe traumatic brain injury with subdural

hematoma” with a “gait disturbance and acute pain.”

      {¶21} The State’s next witness was Mary Marcum, the SANE (Sexual

Assault Nurse Examiner) coordinator at Grant Hospital. She testified that

she is called for sexual assault victims, elder abuse victims and domestic

violence victims. Nurse Marcum testified that SANE nurses question the

victim about what happened and document injuries, etc. Nurse Marcum

testified that SANE nurses help bridge the gap between medical and legal

assistance.

      {¶22} Nurse Marcum testified that she saw Ms. Arthur when she was

in the hospital for the assault. Nurse Marcum documented Ms. Arthur’s

injuries, which included injury/trauma to her mouth, face, head, neck, chest,

buttocks, back, and her extremities, as well as “brain bleeds on each side of

her skull,” as documented by Ms. Arthur’s treating physician. Nurse

Marcum testified that Ms. Arthur reported that Appellant punched her,

slapped her, dragged her by the hair, strangled her, and put her under water

to be drowned. Nurse Marcum noticed a lot of bruising, a ligature mark,

abrasions, missing fingernails, blisters on her fingers, and a petechiae

(minute blood vessel ruptures on the surface of the skin) in one of her eyes.

Nurse Marcum took 106 photographs documenting Ms. Arthur’s injuries.
Vinton App. No. 19CA715                                                         11

Nurse Marcum testified that there was bruising behind Ms. Arthur’s left ear,

which can indicate strangulation. Nurse Marcum testified that trauma can

render people unable to give the exact time and date of events that have

occurred.

      {¶23} On cross examination, Nurse Marcum admitted that petechiae

can occur from reasons other than trauma. Nurse Marcum also admitted that

there was no DNA or physical evidence collected in this case.

      {¶24} The State’s next witness was Rebecca Hess, Ms. Arthur’s

mother. Ms. Hess testified that in February 2018, she received a call from

Deputy Trainer that Ms. Arthur was in bad shape and she wanted to meet

Ms. Hess at a gas station. Ms. Hess testified that she met Ms. Arthur at the

gas station and that her daughter’s face was “all busted up” and “she could

barely walk.” Ms. Hess testified that she drove Ms. Arthur to the hospital at

Adena. She testified that Ms. Arthur blacked out several times during the

trip. She testified that the physicians at Adena Hospital had Ms. Arthur

transported by “CareFlight” to Grant Hospital in Columbus. Ms. Hess

testified that after Ms. Arthur was released from the hospital, she cared for

Ms. Arthur.
Vinton App. No. 19CA715                                                       12

      {¶25} After testimony from Paul Mullins, the dispatcher for the

Vinton County Sheriff’s Office, the State rested its case. Appellant did not

present any witnesses.

      {¶26} The jury found Appellant guilty of all charges, except

attempted murder. The trial court imposed an eight-year prison sentence for

felonious assault, 18 months for disrupting public services, and 180 days for

domestic violence, all to be served concurrently to each other for an

aggregate eight-year prison sentence. It is from this judgment entry of

conviction that Appellant appeals, asserting two assignments of error.

                         ASSIGNMENTS OF ERROR

   “I. WHITE WAS DENIED HIS RIGHT TO DUE PROCESS AND HIS
   RIGHT TO COMPULSORY ATTENDANCE OF A WITNESS WHEN
   THE TRIAL COURT RULED HE COULD NOT CALL THE
   ASSISTANT PROSECUTING ATTORNEY AS A WITNESS.

   II. WHITE WAS DENIED HIS RIGHT TO DUE PROCESS WHEN
   HIS TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE
   OF COUNSEL BY FAILING TO MOVE THE TRIAL COURT FOR
   WHITE TO APPEAR BEFORE THE JURY IN CLOTHING OTHER
   THAN A JAIL UNIFORM.”

                         ASSIGNMENT OF ERROR I

      {¶27} In Appellant’s first assignment of error, he contends the trial

court violated his right to compel the assistant prosecutor to appear as a

witness in his case.
Vinton App. No. 19CA715                                                        13

      {¶28} Appellant argues that he has a right to call the prosecutor as a

witness under Ohio Const. Article 1, Section 10, which in pertinent part

provides that certain accused criminal offenders “have compulsory process

to procure the attendance of witnesses in his behalf.” Appellant alleges that

Ms. Arthur informed the prosecutor that the attack was captured on cell

phone video/pictures. Appellant alleges that the assistant prosecutor’s

testimony - that no such media of the attack exists - “was of critical

importance to [Appellant’s] case” to challenge Ms. Arthur’s credibility

regarding her testimony that such video/pictures did exist.

       {¶29} Appellant also argues that calling the prosecutor as a witness in

this case is not prohibited by Prof.Cond.R. 3.7, which addresses the ethical

considerations when a lawyer is called as a witness.

      {¶30} The State argues that the purpose of the subpoena was to delay

the trial because the existence of any video/pictures of the attack was

discussed in March-May 2018, but the subpoena was not filed until a few

days before trial in November 2018.

      {¶31} The State also asserts that defense counsel was permitted to

question Ms. Arthur on cross examination regarding the alleged

video/pictures Appellant took of the attack. The State asserts that Ms.

Arthur “did not deny that she told the assistant prosecutor that she thought
Vinton App. No. 19CA715                                                       14

Appellant was taking pictures or video of the attack.” Therefore, the State

argues there was no need to challenge her testimony. Accordingly, the State

argues that because “[Ms. Arthur] testified consistent with defense counsel’s

desire,” the assistant prosecutor’s testimony was not necessary to

Appellant’s case.

                         Rules of Professional Conduct

      {¶32} Ohio courts “have no authority to address claimed violations of

the Rules of Professional Conduct - that authority rests solely with the Ohio

Supreme Court.” State v. Montgomery, 8th Dist. Cuyahoga No. 99452,

2013-Ohio-4193, ¶ 36, citing State ex rel. Buck v. Maloney, 102 Ohio St.3d

250, 2004-Ohio-2590, 809 N.E.2d 20. “[T]he Rules of Professional Conduct

have no bearing on the admissibility of evidence.” Id. “ ‘A violation of

attorney disciplinary rules is not of constitutional magnitude and

consequently suppression is not constitutionally required.’ ” Id., quoting

United States v. Guerrerio, 675 F.Supp. 1430, 1433 (S.D.N.Y.1987).

Therefore, whether a trial attorney complies or violates the Rules of

Professional Conduct is immaterial to the question of whether evidence is

properly admitted or excluded.

      {¶33} Accordingly, we find that compliance with Prof.Cond.R. 3.7

has no bearing on the admissibility of the prosecutor’s testimony.
Vinton App. No. 19CA715                                                         15

                              Witness Testimony

      {¶34} “The Sixth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution provide an accused with a

right of compulsory process to obtain a witness's testimony.” State v.

Lavery, 9th Dist. Summit No. 20591, 2001-Ohio-1638, citing Pennsylvania

v. Ritchie, 480 U.S. 39, 56, 94 L.Ed.2d 40, (1987), Columbus v. Cooper, 49

Ohio St.3d 42, 550 N.E.2d 937 (1990). And “[f]ew rights are more

fundamental than the right of an accused to present witnesses on his behalf.”

State v. Brown, 64 Ohio St.3d 649, 652, 1992-Ohio-19, 597 N.E.2d 510

(1992), citing Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 652, 98

L.Ed.2d 798 (1988).

      {¶35} “The right to compulsory process, however, is not unlimited.”

State v. Denis, 117 Ohio App.3d 442, 446, 690 N.E.2d 955 (1997), State v.

Collins, No. 48159, 1984 WL 6341, at *3 (Ohio Ct. App. Dec. 6, 1984),

State v. Smiddy, 2nd Dist. Stark No. 06CA0028, 2007-Ohio-1342, ¶ 25.

“The principle that undergirds the defendant's right to present exculpatory

evidence is also the source of essential limitations on the right.” Taylor v.

Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 654, 98 L.Ed.2d 798 (1988).

“The trial process would be in shambles if either party had an absolute right

to control the time and content of his witnesses' testimony.” Id. at 411.
Vinton App. No. 19CA715                                                        16

“The State's interest in the orderly conduct of a criminal trial is sufficient to

justify the imposition and enforcement of firm, though not always inflexible,

rules relating to the identification and presentation of evidence. Id.

Therefore, “a defendant's right to present his own witnesses to establish a

defense is prescribed by the rules of evidence.” State v. Denis, 117 Ohio

App.3d at 442, 446, 690 N.E.2d 955 (6th Dist.). “A trial court has

broad discretion in the admission or exclusion of evidence and so long as

such discretion is exercised in line with the rules of procedure and evidence,

its judgment will not be reversed absent a clear showing of an abuse

of discretion with attendant material prejudice to defendant.” State v. Blair,

2016-Ohio-2872, 63 N.E.3d 798, ¶ 67, quoting State v. Richardson, 4th Dist.

Scioto No. 14CA3671, 2015-Ohio-4708, ¶ 62.

      {¶36} “A party may not predicate error on the exclusion of evidence

during the examination in chief unless” (1) the party proffers the expected

testimony or the proffer is apparent from the context of the questions asked,

and (2) the exclusion of such evidence must affect a substantial right of the

party. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d

996, ¶ 113, citing State v. Gilmore, 28 Ohio St.3d 190, 503 N.E.2d 147

(1986), syllabus. If the excluded testimony does not have an impact on the
Vinton App. No. 19CA715                                                                                    17

jury’s verdict, it has not prejudiced the movant’s substantial rights. State v.

Blair, 2nd Dist. Montgomery No. 26256, 2015-Ohio-3604, ¶ 14-15.

         {¶37} Finally, the Supreme Court of Ohio has “recognize[d] that a

prosecuting attorney should avoid being a witness in a criminal

prosecution,” unless “it is a complex proceeding where substitution of

counsel is impractical, * * * the attorney so testifying is not engaged in the

active trial of the cause and it is the only testimony available * * *.”

(Emphasis added.) State v. Coleman, 45 Ohio St.3d 298, 302, 544 N.E.2d

622 (1989).1

         {¶38} During cross examination, Appellant’s counsel asked Ms.

Arthur: “Okay. And do you, you indicated you recall alleging that

[Appellant] held you down, beat you and videoed the incident while it was

going on?” Ms. Arthur responded: “He said he was. I wasn’t on the other

side of the phone. All I know is he had it in front of me while he was hitting

me.” (Emphasis added.)

         {¶39} Contrary to Appellant’s assertion, Ms. Arthur did not testify

that a video of the attack existed. Rather, she alleged that Appellant told her

that he was videoing the attack. In fact, her statement - “I wasn’t on the

other side of the phone” - indicates that Ms. Arthur was uncertain whether
1
  While Coleman addressed a prosecutor testifying for the State, we believe the disfavor of having a
prosecutor testify in a case is equally, if not more, compelling when it is the defendant who is calling for
the prosecutor to testify.
Vinton App. No. 19CA715                                                        18

Appellant recorded the attack. Therefore, we find that the assistant

prosecutor’s proffered testimony - that no video of the attack existed - would

not have impeached Ms. Arthur’s testimony, or even undermined its

credibility, which was the basis of Appellant’s argument on appeal.

Consequently, we find the assistant prosecutor’s excluded testimony would

not have impacted the jury’s verdict, i.e. it did not affect Appellant’s

substantial rights. See Blair, 2nd Dist. Montgomery No. 26256, 2015-Ohio-

3604, ¶ 14-15. Moreover, because Ms. Arthur provided the only testimony

necessary to answer Appellant’s question regarding the recording of the

attack, Coleman also supported our conclusion that the assistant prosecutor

should not have been called as a witness in this case.

      {¶40} Accordingly, the trial court did not abuse its discretion in

precluding Appellant from calling the assistant prosecutor as a witness is his

case. We overrule Appellant’s first assignment of error.

                        ASSIGNMENT OF ERROR II

      {¶41} In his second assignment of error, Appellant alleges that he was

denied his right to due process when his trial attorney provided ineffective

assistance of counsel by failing to move the trial court for him to appear

before the jury in clothing other than a jail uniform.
Vinton App. No. 19CA715                                                        19

      {¶42} Prior to voir dire and out of jury’s presence, the prosecutor

brought to the attention of the court and Appellant that the State had:

        concerns that the defendant is not in street clothes as he is in

        a jumper. Um I don’t think any of us here want to go forward

        and go through a trial of this length and magnitude to have

        the Court of Appeals say, well, but he was – he was in his

        jumper instead of street clothes. I don’t know how the court

        wants to address that, but I do want to note it on the record

        that I have some concerns about – about going forward with

        that.

In response, Appellant’s counsel stated: “I have nothing to add to that judge.

I am not familiar with the case law to which [the prosecutor] is referring.”

The judge the stated: “All right. Very well then. Anything further?” Both

attorneys responded in the negative, and proceedings continued.

      {¶43} Appellant argues that his trial counsel was ineffective for

failing to request the trial court for an opportunity to appear before the jury

in clothing other than his jail uniform. Appellant argues the United States

Supreme Court held that appearing in a jail uniform before a jury is

“inherently prejudicial” in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1961

(1976). Because Appellant’s counsel purportedly was not familiar with
Vinton App. No. 19CA715                                                           20

Estelle or similar case law, and did not request that Appellant be dressed in

clothing other than his jail uniform, Appellant argues that his performance

was below an objective level of reasonable representation. He also argues

that he was “directly prejudiced” by wearing his jail uniform before the jury.

      {¶44} The State argues that while Estelle held that wearing prison

attire can be prejudicial, it did not establish a bright line test to make that

determination when wearing prison attire was reversible error. This, the

State argues, is because some defendants may prefer to wear prison clothing

to elicit sympathy. Therefore, a defendant must show that he or she was

compelled to wear prison clothing as a perquisite to finding prejudice. The

State argues that Appellant failed to make the showing that his counsel was

ineffective.

      {¶45} The State also highlights the fact that Appellant’s counsel was

made aware that Appellant was wearing prison clothing, and because he did

not object, Appellant waived any right to claim that it was error. The State

further argues that Appellant’s assignment of error should be rejected under

the invited error doctrine.

      {¶46} “To establish constitutionally ineffective assistance of counsel,

a defendant must show (1) that his counsel's performance was deficient and

(2) that the deficient performance prejudiced the defense and deprived him
Vinton App. No. 19CA715                                                        21

of a fair trial.” State v. Barnhart, 4th Dist. Meigs Nos. 18CA8 and 18CA15,

2019-Ohio-1184, ¶ 64, citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052 (1984). “Failure to satisfy either part of the test is fatal to the

claim.” State v. Gillian, 4th Dist. Gallia No. 16CA11, 2018-Ohio-4983, ¶ 12,

citing Strickland at 697.

      {¶47} The United States Supreme Court has addressed the issue of

“whether an accused who is compelled to wear identifiable prison clothing at

his trial by a jury is denied due process or equal protection of the laws.”

Estelle v. Williams, 425 U.S. 501, 502, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126

(1976).

      {¶48} Estelle found that in large part courts have “determined that an

accused should not be compelled to go to trial in prison or jail clothing

because of the possible impairment of the presumption [of innocence] so

basic to the adversarial system.” (Citations omitted.) Id. at 504. However,

Estelle also recognized that courts have declined to adopt a per se rule

invalidating all convictions where a defendant had appeared before the jury

in prison clothing. Id. at 508. The court stated that:

          [t]he reason for this judicial focus upon compulsion is

          simple; instances frequently arise where a defendant prefers

          to stand trial before his peers in prison garments. The cases
Vinton App. No. 19CA715                                                        22

        show, for example, that it is not an uncommon defense tactic

        to produce the defendant in jail clothes in the hope of

        eliciting sympathy from the jury. Id. at 507-508, citing

        Andern v. Watt, 475 F.2d 881, 882 (10th Cir. 1973); Watt v.

        Page, 452 F.2d 1174, 1176 (10 Cir. 1972), Cf. Garcia v.

        Beto, 452 F.2d 655, 656 (5th Cir. 1971).

Therefore, the court held that:

        although the State cannot, consistently within the Fourteenth

        Amendment, compel an accused to stand trial before a jury

        while dressed in identifiable prison clothes, the failure to

        make an objection to the court as to being tried in such

        clothes, for whatever reason, is sufficient to negate the

        presence of compulsion necessary to establish a

        constitutional violation. (Emphasis added.) Estelle, 425

        U.S. 501, 512-13, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126

        (1976)

      {¶49} In State v. Judy, 4th Dist. Ross No. 08CA3013, 2008-Ohio-

5551, ¶ 37, the Court addressed whether Appellant’s trial counsel’s failure to

object to the fact that his client wore prison clothing at trial constituted

ineffective assistance of counsel. The appellant in Judy appeared at trial
Vinton App. No. 19CA715                                                         23

dressed in his prison clothes. Id. at ¶ 4. But during voir dire, Appellant’s

counsel asked the jury if anyone would treat Appellant unfairly because his

of his prison clothes. Id. “[T]here was no indication from the jury that there

would be a problem.” Id.

        {¶50} On direct appeal, Appellant alleged that his “counsel was

ineffective for not dressing her appropriately for trial.” Id. at ¶ 32. After

reviewing the holding in Estelle, the court in Judy concluded that

“[a]lthough other attorneys may have suggested or done otherwise, we

decline to second-guess trial counsel's decision to allow his client to stand

trial in prison garb because this decision has been acknowledged to be a

strategic one.” Id. at ¶ 42, citing Estelle, supra, United States v. Wells, 9th

Cir. No. 97-35656, 1998 WL 741173 (Oct. 13, 1998), State v. Singer, 4th

Dist. Ross No. 99CA2845, 2000 WL 1093577, (July 31, 2000), State v.

Edgington, 4th Dist. Ross No. 95CA2151, 1996 WL 720860 (Dec. 11,

1996). Accordingly, the court rejected Appellant’s ineffective assistance of

counsel argument.

        {¶51} In addition, overwhelming evidence supporting an appellant’s

convictions may negate any prejudice for wearing prison clothing at trial.

See State v. Godbolt, 5th Dist. Licking No. 2003CA00034, 2004-Ohio-317,

¶ 21.
Vinton App. No. 19CA715                                                         24

        {¶52} In this case, unlike in Judy, Appellant’s counsel was

apparently unaware that under the law a defendant could not be compelled to

wear prison clothes to trial. However, the prosecutor put Appellant on

notice that a defendant had the option to wear street clothes at trial rather

than prison clothing, even noting that he did not want Appellant’s prison

clothing to become an issue on appeal. Nevertheless, Appellant never

objected to his prison attire or otherwise expressed a desire to wear street

clothes at trial. As Estelle stated: “the failure to make an objection to the

court as to being tried in [prison] clothes, for whatever reason, is sufficient

to negate the presence of compulsion necessary to establish a constitutional

violation.”

      {¶53} Finally, there is overwhelming evidence supporting Appellant’s

convictions. Although there are some inconsistencies in the testimony of

some of the witnesses, the evidence and testimony support that Appellant

physically assaulted Ms. Arthur and caused her significant injury.

Accordingly, we find that Appellant cannot show that he was prejudiced by

wearing his prison clothing at trial. See Godbolt.

      {¶54} Absent deficient representation and a lack of prejudice, we find

that Appellant’s counsel was not ineffective. Accordingly, we overrule

Appellant’s second assignment of error.
Vinton App. No. 19CA715                                                25

                               CONCLUSION

      {¶55} Having overruled both of Appellant’s assignments of error, we

affirm the trial court’s judgment of conviction.

                                              JUDGMENT AFFIRMED.
Vinton App. No. 19CA715                                                        26

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Vinton County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
