[Cite as State v. Partin, 2013-Ohio-2858.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2012-09-189

                                                   :            OPINION
    - vs -                                                       7/1/2013
                                                   :

JOHN EDWARD PARTIN,                                :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2011-12-2100



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, John Edward Partin, appeals his convictions and

sentence in the Butler County Court of Common Pleas for single counts of having weapons

under disability and obstructing official business.

        {¶ 2} In the early morning hours of December 10, 2011, the Hamilton, Ohio 911 call

center received several complaints about shots being fired in a residential neighborhood.

One such call was made by Ferdinand Sneed, who stated that he heard and saw an
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individual in his neighbor's house shooting a gun. Sneed gave the 911 dispatcher his

information, and directed police to the house in back of his own. Hamilton police responded

to the area, and also saw and heard gunfire coming from the house of Sneed's neighbor.

Hamilton police surrounded the house and directed the occupants of the house to exit.

Partin, who had been inside the house, came out the front door, but went back into the house

when police ordered him to show his hands and walk toward the officers. Partin and the

other individuals inside the home refused to exit, and stayed inside for approximately two

hours.

         {¶ 3} Hamilton police cordoned off the neighborhood until the SWAT team appeared

on the scene. After SWAT's arrival, Partin and the other occupants exited the house and

were arrested. Upon questioning, Partin denied having heard or seen any gun fire, and

claimed that he was not aware that police were surrounding the house until he exited once

SWAT was on the scene. Police conducted a gunshot residue test and determined that

Partin's test was positive for the existence of gunshot residue on his hands.

         {¶ 4} Partin was indicted for single counts of having weapons while under disability

and obstructing official business. The having weapons while under disability charge was

predicated upon Partin's past adjudication as a juvenile delinquent for having committed

felonious assault on a police officer. Partin pled not-guilty to his current charges, and the

matter proceeded to a two-day jury trial.

         {¶ 5} During the state's case-in-chief, Sneed testified that on the night of the incident,

he was preparing for bed when he heard shots being fired and saw "a gentleman firing a

firearm out of his—out of the kitchen window." Sneed then testified that the kitchen light was

on in his neighbor's house and that he could see that "two gentlemen, one being the

defendant and then another gentleman who was standing slightly, a little back and to his

side" were in the location where the shots had just been fired. Sneed then made an in-court
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identification of Partin as the man he saw shooting the gun in the kitchen on the night of the

incident. When asked where exactly he saw Partin that night, Sneed stated, "standing inside

the window with a little bit of his body and his arm hanging out the window firing the firearm."

The state also asked Sneed to explain how he was able to differentiate between the two

gentlemen to know that it was Partin that fired the gun. Sneed testified, "most of it was body

size. The other gentleman's quite a bit skinnier. Not too much shorter, but quite a bit

skinnier." Sneed also testified that he had seen a "red emblem" on the shooter's shirt that

night, and that he told police about the emblem when they took his statement.

        {¶ 6} On cross-examination, defense counsel asked Sneed to read a portion of his

police statement, which stated "I could not make out faces. They both had short hair and

looked scruffy, but I could not make out features. I called 911."1 Defense counsel then

asked Sneed whether he had seen a photograph of Partin after he made his statement, and

Sneed confirmed that he had been shown photographs of the individuals who were in the

house by a police officer. At that point, defense counsel requested a bar conference, and

moved the trial court for a mistrial because the state had not divulged during discovery that

Sneed was shown photographs of the individuals who were in the house on the night of the

incident.

        {¶ 7} The trial court, outside the presence of the jury, considered Partin's motion for a

mistrial. The state explained that police never told the state about the use of photographs,

and that the prosecutor had no idea that Sneed was shown photographs prior to his

identification of Partin as the shooter. The trial court then held a hearing, during which the

officer who showed the photographs to Sneed was called as a witness and questioned.



1. Sneed's statement was not admitted as an exhibit. Nor, have the parties made the statement a part of the
appellate record. The only reference to Sneed's statement in the record is this excerpt read by Sneed during
trial.


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Detective James Calhoun testified that he took Sneed's statement soon after the incident,

and confirmed that during that time, he showed Sneed photographs of the individuals from

the house. The photographs shown to Sneed had been taken by Detective Calhoun soon

after the standoff ended, and once the individuals had been secured at the police station.

       {¶ 8} Detective Calhoun testified that he only showed the photographs so that Sneed

could identify the emblem on the shirt worn by the shooter. Detective Calhoun testified that

because Sneed had told him that he was unable to identify faces, the photographs were

being shown "just to see if the logo that he was describing was the one on the shirt."

Detective Calhoun stated that he did not ask Sneed to identify the shooter's face, only the

logo from the shirt the shooter was wearing. Therefore, Detective Calhoun did not consider

the showing of photographs to Sneed to be a photographic line-up that needed to be shared

with the prosecutor.

       {¶ 9} On cross-examination, Detective Calhoun admitted that he had not used a blind

administrator to help show the photographs to Sneed, did not include any photographs of

non-suspects, and that he did not put the pictures in any type of folder before showing them

to Sneed. Defense counsel then argued to the trial court that the photographic identification

process used by Detective Calhoun was in violation of Ohio's statute that sets forth proper

identification procedures.

       {¶ 10} The trial court overruled the motion for a mistrial, and instead gave defense

counsel the opportunity to call Detective Calhoun in the presence of the jury so that the jury

could hear more details specific as to how Sneed was able to identify Partin as the shooter.

Defense counsel declined to call Detective Calhoun, and did not otherwise request a

continuance or a separate hearing on a motion to suppress Sneed's identification, and

instead continued with the trial after noting his objection to the trial court's ruling.



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       {¶ 11} The jury found Partin guilty of both counts, and the trial court sentenced Partin

to five years of community control on the having weapons while under disability charge, and

a 90-day suspended sentence for the obstructing official business charge. Partin now

appeals his convictions and sentence, raising the following assignments of error. For ease of

discussion, we will combine Partin's second and third assignments of error, as they are

interrelated.

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND

ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR A MISTRIAL.

       {¶ 14} Partin argues in his first assignment of error that the trial court abused its

discretion when it denied his motion for a mistrial.

       {¶ 15} "A mistrial should not be ordered merely because of some error or irregularity at

trial." State v. Sidibeh, 192 Ohio App.3d 256, 270, 2011-Ohio-712, ¶ 44 (10th Dist.).

Instead, "mistrials need be declared only when the ends of justice so require and a fair trial is

no longer possible." State v. Garner, 74 Ohio St.3d 49, 59 (1995). A trial court's decision to

deny a motion for a mistrial is within the sound discretion of the trial court. State v. Gilbert,

12th Dist. No. CA2010-09-240, 2011-Ohio-4340, ¶ 83. An abuse of discretion connotes

more than an error in law or judgment; it implies that the court's attitude is unreasonable,

arbitrary, or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23 (2002). "An appellate

court will not disturb the exercise of this discretion absent a showing that the accused has

suffered material prejudice."     State v. Blankenship, 102 Ohio App.3d 534, 549 (12th

Dist.1995).

       {¶ 16} After reviewing the record, we conclude Partin was not denied a fair trial and did

not suffer material prejudice, thus the trial court did not abuse its discretion by denying

Partin's motion for a mistrial.
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       {¶ 17} The record reveals that Partin was aware that Sneed had identified him as the

shooter, and that Sneed was going to make an in-court identification of Partin as the shooter.

During the state's opening argument, the prosecutor stated,"Mr. Sneed will tell you that he's

able to identify that defendant as being the one that he saw shooting that gun out of the that

window. That's what brings us here today." Sneed then made the in-court identification that

Partin knew would occur. While Partin may not have known how Sneed was able to identify

him, there is no indication on the record that Partin was surprised or otherwise prejudiced by

an in-court identification.

       {¶ 18} While the police most assuredly should have shared the information with the

state that Sneed's identification of Partin as the shooter came after he was shown

photographs of the suspects, we refuse to find that a mistrial was warranted. Partin, knowing

that Sneed was going to and did identify him in court, cross-examined Sneed with the

statement that Sneed gave the police regarding his inability to distinguish faces on the night

of the incident. The jury, therefore, was made aware of the fact that only hours after the

incident, Sneed told police that he was unable to identify the shooter by his face and was

only able to identify the emblem on the shooter's shirt. Defense counsel declined to call

Detective Calhoun, even though doing so would have drawn out further testimony that Sneed

was unable to identify Partin's face, and that Sneed only made the identification after seeing

the photographs of the suspects. Nonetheless, and despite Detective Calhoun not testifying

during Partin's defense, the jury was aware of the circumstances of Sneed's identification of

Partin and of Sneed's statement to police in which he clearly indicated that he could not

make out faces on the night of the incident.

       {¶ 19} Moreover, Partin was not deprived a fair trial, nor did he suffer material

prejudice, because there was other evidence introduced at trial that supported Sneed's

identification of Partin as the shooter. Sneed testified that he was able to identify which
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person shot the gun because of the difference in body type between the two men who had

been standing next to each other. "Most of it was body size. The other gentleman's quite a

bit skinnier. Not too much shorter, but quite a bit skinnier." The size of the men's bodies was

something that Sneed observed the night of the incident, and was not predicated upon

seeing the photographs. In fact, Sneed never attempted to indicate that his identification was

based upon having seen Partin's face during the actual shooting. Nor was there testimony

indicating Sneed was only able to make an in-court identification due to viewing the

photographs. Instead, Sneed's testimony was consistent with his statement to police that he

was unable to identify the shooter's face, and remained consistent at trial when he explained

that he was able to distinguish the shooter from the non-shooter based on the difference in

their body size, as well as large emblem on the shooter's shirt. Sneed never changed his

story to claim that he could make an identification based upon having seen the shooter's

face.

        {¶ 20} The jury was free to infer that Sneed's identification was due little weight

because he never saw the shooter's face, and was not basing the identification on having

seen Partin's face. However, the jury could have also given great weight to Sneed's

testimony regarding the large red emblem on Partin's shirt, as well as the difference in body

types between Partin and the other person who was standing near him on the night of the
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incident. The jury was shown the same photographs that Sneed was shown when he gave

his statement, and could have deduced from those photographs that Partin is the only

individual from the house who had a large red emblem on his shirt, and was larger than any


2. Partin has not pointed to any evidence produced at trial or at the mistrial hearing to suggest that Sneed's in-
court identification was not the result of his independent recollection of seeing Partin's body build and shirt
emblem the night of the shooting. Choosing not to further cross-examine Sneed or have Detective Calhoun
testify about showing Sneed the photographs was obvious trial strategy because it would have further developed
the way in which Sneed identified Partin in court. Instead, defense counsel chose to rely upon the apparent
contradictory statement given by Sneed, which was not an unreasonable strategy.

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of the other men in the house on the night of the incident. Given this other evidence leading

to identification, we refuse to find that Partin was materially prejudiced or denied a fair trial.

        {¶ 21} Nor can we say that a mistrial was the proper means for addressing Detective
                  3
Calhoun's mistake. Detective Calhoun admitted during his testimony that, in hind sight, he

should have informed the state of his showing the photographs to Sneed. Had he done so,

the state could have shared that information with Partin during discovery. However, as we

have previously discussed, a mistrial should not be ordered merely because of some error or

irregularity at trial, especially where that error could be rectified through several possible

curative measures.

        {¶ 22} As recently stated by the Ohio Supreme Court, parties to a trial should make an

attempt to complete the trial procedure in the event of some discovery error without the trial

court employing the strictest remedy available. State v. Darmond, 135 Ohio St.3d 343, 2013-

Ohio-966. In Darmond, the court noted that "a continuance should be ordered if it is feasible

and would allow for an opportunity to minimize any surprise or prejudice caused by the

discovery violation." Id. at ¶ 40.

        {¶ 23} The error that occurred at Partin's trial could have been cured by means other

than a mistrial, such as moving for a hearing on a motion to suppress, requesting a



3. While not applicable to the facts of this case, we are nonetheless cognizant that the law does not require the
imposition of the harshest penalty possible should an officer make a mistake during an investigation. Instead,
courts are permitted to consider whether an officer had a "good faith" basis for his actions. The policy inherent in
the good faith exception is also pertinent to the case at bar because there is no indication in the record that
Detective Calhoun deliberately acted in a manner to conceal the fact that he showed Sneed the photographs.
Instead, his testimony at the hearing indicated his honest and reasonable belief that the photographs were only
shown to Sneed so that Sneed could identify the emblem he saw on the shirt of the shooter that night. "When
the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights, the
deterrent value of exclusion is strong and tends to outweigh the resulting costs. * * * But when the police act
with an objectively 'reasonable good-faith belief' that their conduct is lawful * * * or when their conduct involves
only simply 'isolated' negligence * * * the 'deterrence rationale loses much of its force' and exclusion cannot 'pay
its way.'" State v. Widmer, 12th Dist. No. CA2011-03-027, 2012-Ohio-4342, ¶ 55, quoting Davis v. United States,
131 S.Ct. 2419, 2427-28 (2011).


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continuance to evaluate trial strategy, the development of additional testimony, or some other

curative measure.4

       {¶ 24} For example, the Tenth District Court of Appeals discussed how a continuance

and a reevaluation of defense strategy can cure an improper photographic lineup procedure.

State v. Sidibeh, 192 Ohio App.3d 256, 271, 2011-Ohio-712 (10th Dist.). In Sidibeh, the

prosecutor made reference in its opening statement to a photographic array that was not

produced to the defense during discovery. The trial court ordered that the jurors were not to

consider the photographic array or the state's reference to it, but did not otherwise exclude

the witness' testimony regarding her in-court identification of the appellant based upon the

photograph array. In affirming the trial court's denial of Sidibeh's motion for a mistrial, the

court stated,

                although the court did not strike [the witness'] in-court
                identification of appellant, it granted appellant a continuance to
                allow him time to readjust his defense due to the newly
                discovered information. This remedy proved to be sufficient
                because, during the cross-examination of [the witness] and
                closing argument, defense counsel was able to challenge [the
                witness] on her identification of appellant as a perpetrator.
                Specifically, he suggested that [the witness'] identification was
                based not on her recognizing appellant from the home invasion,
                but on her seeing a photograph of appellant on a social-
                networking website and seeing him in juvenile court.

Id. at ¶ 46.

       {¶ 25} Partin did not move for any of the curative measures mentioned in Sidebeh, did

not employ the curative measure suggested by the trial court, and did not pursue measures

that were available to him upon request. Partin decided instead, to proceed with trial and

assumedly argue on appeal that mistrial was the only remedy available. There is no

indication in the record that the trial court would not have considered Partin's request for a


4. However, even if those less harsh remedies had been requested, we see no evidence suggesting that a
different result would have occurred.

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continuance or some other remedy, especially where the trial court, itself, suggested calling

Detective Calhoun to expose the jury to the details of Sneed's initial statement and

subsequent identification. Again, even with consideration of other remedies, we do not

perceive a different outcome. The fact that defense counsel declined to pursue curative

measures, however, did not entitle Partin to a mistrial, and the trial court did not abuse its

discretion in denying Partin's motion.      Therefore, Partin's first assignment of error is

overruled.

       {¶ 26} Assignment of Error No. 2:

       {¶ 27} THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT PROVIDED A

JURY INSTRUCTION THAT INCLUDED AN INCORRECT AND MISLEADING STATEMENT

OF LAW.

       {¶ 28} Assignment of Error No. 3:

       {¶ 29} APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL,

IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION,

WHICH DENIAL RESULTED IN PREJUDICE.

       {¶ 30} Partin argues in his second and third assignments of error that the trial court

gave an erroneous jury instruction, and that he received ineffective assistance of counsel

because his trial counsel failed to object to the jury instruction.

       {¶ 31} As referenced, Partin's trial counsel did not object to the jury instructions.

Therefore, we will review the instructions for plain error. According to Crim.R. 52(B), "plain

errors or defects affecting substantial rights may be noticed although they were not brought

to the attention of the court." However, "[a]n alleged error does not constitute plain error

unless, but for the error, the outcome of the trial clearly would have been otherwise. * * *

Notice of plain error must be taken with utmost caution, under exceptional circumstances and
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only to prevent a manifest miscarriage of justice." State v. Baldev, 12th Dist. No. CA2004-

05-106, 2005-Ohio-2369, ¶ 12.

       {¶ 32} A reviewing court may not reverse a conviction in a criminal case due to jury

instructions unless "it is clear that the jury instructions constituted prejudicial error." State v.

Brown, 12th Dist. No. CA2008-12-049, 2009-Ohio-3933, ¶ 6, citing State v. Adams, 62 Ohio

St.2d 151, 154 (1980). In order to determine whether an erroneous jury instruction was

prejudicial, a reviewing court must examine the jury instructions as a whole. State v. Harry,

12th Dist. No. CA2008-01-013, 2008-Ohio-6380, ¶ 36, citing State v. Van Gundy, 64 Ohio

St.3d 230, 233-34(1992). A jury instruction constitutes prejudicial error where it results in a

manifest miscarriage of justice. State v. Hancock, 12th Dist. No. CA2007-03-042, 2008-

Ohio-5419, ¶ 13.

       {¶ 33} Partin argues that the trial court erred in instructing the jury on the having

weapons while under disability charge.         Partin specifically challenges the trial court's

instruction as to how the jury was directed to use evidence that Partin had been previously

adjudicated a delinquent child for having committed felonious assault against a police officer,

the predicating conviction for why Partin was forbidden from having weapons.

       {¶ 34} According to R.C. 2923.13,

               (A) Unless relieved from disability as provided in section 2923.14
               of the Revised Code, no person shall knowingly acquire, have,
               carry, or use any firearm or dangerous ordnance, if any of the
               following apply:

                (2) The person is under indictment for or has been convicted of
               any felony offense of violence or has been adjudicated a
               delinquent child for the commission of an offense that, if
               committed by an adult, would have been a felony offense of
               violence

Based upon Partin's adjudication, he was prohibited from having, carrying, or using a firearm.

Once Partin was identified as the shooter, he was charged with having weapons under


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disability.

        {¶ 35} The trial court admitted the juvenile court's judgment entry regarding Partin's

adjudication for the felonious assault charge.          The trial court gave the following jury

instructions regarding how the jury was to use evidence of the adjudication.

               Evidence was received about the commission of a crime other
               than the offenses with which the defendant is charged in this
               trial. That evidence was received only for a limited purpose. It
               was not received, and you may not consider it, to prove the
               character of the defendant in order to show that he acted in
               conformity with that character. If you find that the evidence of
               other crime[s] is true and that the defendant committed it, you
               may consider that evidence only for the purpose of deciding the
               identity of the person who committed the offense in this trial.
               That evidence cannot be considered for any other purpose.

Partin now argues that this jury instruction was erroneous and was plain error because the

jury instruction advised the jury to consider Partin's prior adjudication when "deciding the

identity of the person who committed the offense in this trial."

        {¶ 36} Partin argues that identification was a major issue at trial, and that the jury was

confused regarding identification because the jury asked to see a transcript of Sneed's

testimony, as well as the statement he gave to police after the incident occurred. Based

upon the jury's questions, Partin asserts that the jury was confused regarding Sneed's

identification of Partin as the shooter and that the jury instruction exacerbated the jury's

confusion by stating that Partin's conviction was to be used to decide the "identity of the

person who committed the offense in this trial." We agree with Partin that the instruction was

not stated as clearly as it could have been and was inartfully conveyed. However, after

considering the jury instructions as a whole, we cannot say that the instructions constituted

plain error.

        {¶ 37} While the jury's questions possibly suggest that jurors may have been debating

Sneed's identification of Partin as the shooter on the night of the incident, the questions do


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not indicate that the confusion the jury may have felt was specific to the trial court's jury

instruction regarding how to use the prior adjudication.5 The identity question posed to the

jurors was whether Partin was the shooter on the night of the incident. That identity question

was a wholly separate question than what Partin assumes the jury grappled with: whether

Partin could be identified as the shooter based upon his prior adjudication. None of the jury's

questions regarding identity were related to Partin's prior conviction, or associated with the

wording of the jury instruction regarding how to use evidence of the prior adjudication.

Instead, the instructions specifically advised the jurors that they were not to consider Partin's

prior adjudication as proof that he was the shooter on the night of the incident or as proof that

Partin acted on the night of the incident in conformity with his prior conduct.

        {¶ 38} While the second part of the jury instruction could have been aimed at

consideration of Partin's legal disability and should not have included reference to the

"identity" of the person who committed this offense, the fact remains that the trial court

specifically told the jury not to use the evidence for any other purpose except to determine

whether Partin had previously been adjudicated and was therefore forbidden from having or

using firearms. See State v. Ross, 135 Ohio App.3d 262, 277 (12th Dist.1999) (finding jury

instructions proper where "the charge clearly informed the jury that it could not consider

appellant's prior conviction as proof that he acted in conformity with character. The jury is

presumed to have followed the instructions given unless appellant can demonstrate

otherwise"). Given the clarity of the trial court's admonition of how the jurors could not use

the evidence of Partin's prior adjudication, coupled with the fact that the jury is presumed to




5. The jury's questions, if anything, demonstrate that it did not rely upon Partin's prior adjudication to establish
that Partin was the shooter on the night of the incident because if it had, there would have been no need for the
jury to debate or inquire further regarding Sneed's testimony. The jury properly weighed the evidence, and did
not improperly rely on evidence of Partin's prior adjudication.


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have followed those instructions, we find that the jury instructions did not constitute reversible

error.

         {¶ 39} Regarding ineffective assistance of counsel, an appellant must establish that

first, "his trial counsel's performance was deficient; and second, that the deficient

performance prejudiced the defense to the point of depriving the appellant of a fair trial."

State v. Myers, 12th Dist. No. CA2005-12-035, 2007-Ohio-915, ¶ 33, citing Strickland v.

Washington, 466 U.S. 668, 689, 104 S.Ct. 2052 (1984). Regarding the first prong, an

appellant must show that his counsel's representation "fell below an objective standard of

reasonableness." Strickland, 466 U.S at 688. The second prong requires the appellant to

show "a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694.

         {¶ 40} While the jury instructions were not artfully crafted, we will not presume a

misapplication of the instructions by the jury. All indications are that even if the instructions

had been more precisely drafted, the exact same results would have been reached. Partin

cannot demonstrate that his trial counsel's performance was deficient or that his counsel's

failure to object to the jury instructions prejudiced the defense to the point of depriving him of

a fair trial. Therefore, Partin's second and third assignments of error are overruled.

         {¶ 41} Judgment affirmed.


         RINGLAND, P.J., and S. POWELL, J., concur.




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