[Cite as State v. Pennington, 2014-Ohio-5426.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 100964



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     ROBERT M. PENNINGTON

                                                       DEFENDANT-APPELLANT




                                          JUDGMENT:
                                    AFFIRMED AND REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-12-568808-A

        BEFORE:         McCormack, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 11, 2014
ATTORNEY FOR APPELLANT

Matthew M. Nee
Nee & Bittinger, L.L.C.
26032 Detroit Rd.
Suite 5
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Andrew Rogalski
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant Robert M. Pennington appeals his convictions for aggravated

murder, aggravated robbery, aggravated burglary, murder, and felonious assault. Following a

review of the record, we affirm and remand.

                                      Procedural History

       {¶2}    On November 13, 2012, Pennington was charged under a multiple count

indictment as follows: (1) Count 1 — aggravated murder, in violation of R.C. 2903.01(A); (2)

Count 2 — aggravated murder, in violation of R.C. 2903.01(B); (3) Count 3 — aggravated

robbery, in violation of R.C. 2911.01(A)(3); (4) Count 4 — aggravated burglary, in violation of

R.C. 2911.11(A)(1); (5) Count 5 — kidnapping, in violation of R.C. 2905.01(A)(3); (6) Count 6

— murder, in violation of R.C. 2903.02(B); (7) Count 7 — felonious assault, in violation of R.C.

2903.11(A)(1); and (8) Count 8 — felonious assault, in violation of R.C. 2903.11(A)(2). The

named victim in each count was Roy F. Rose (“Rose”). All counts included one- and three-year

firearm specifications, repeat violent offender specifications, and notice of prior conviction

specifications. The prior conviction specifications were bifurcated, and the remaining charges

proceeded to a jury trial.

       {¶3}    Prior to trial, Pennington moved for an indefinite continuance of trial based upon

his assertion that he was “physically incompetent” to stand trial due, in large part, to end-stage

liver failure. Although the basis for the motion was Pennington’s physical ailments and his

inability to withstand the physical rigors of a trial, the trial court noted that counsel’s motion

alluded to Pennington’s competency.      Therefore, the trial court referred Pennington for an

evaluation by the court psychiatric clinic and scheduled a competency hearing for July 16, 2013.

At the conclusion of the hearing, Pennington’s counsel moved for an independent competency
evaluation. Following the hearing, the court found Pennington competent to stand trial and

denied Pennington’s motion for continuance and motion for an independent competency

evaluation. On August 2, 2013, in an effort to accommodate Pennington’s physical ailments, the

trial court ordered the Cuyahoga County Sheriff to ensure that a member of Pennington’s medical

staff attend trial with Pennington in order to monitor his physical needs.

       {¶4}    Trial commenced on September 30, 2013.            At the conclusion of the state’s

evidence, Pennington moved the court for a Crim.R. 29 dismissal, which was granted as to Count

5, kidnapping. On October 4, 2013, the jury found Pennington not guilty of aggravated murder,

in violation of R.C. 2903.01(A), as charged in Count 1, and guilty of Counts 2, 3, 4, 6, 7, and 8,

along with the firearm specifications. The court found Pennington not guilty of the repeat

violent offender and notice of prior conviction specifications, finding no evidence of prior

convictions.

       {¶5}    The court sentenced Pennington on October 10, 2013. For sentencing purposes,

Counts 4, 6, 7, and 8, were merged with Count 2. On Count 2, the court sentenced Pennington

to life, with parole eligibility after 30 years, and three years on the firearm specification. The

court ordered this sentence to be served consecutively.        On Count 3, the court sentenced

Pennington to nine years, plus three years on the firearm specification, to be served

consecutively. The court ordered the sentences for Counts 2 and 3 to be served concurrently.

                                  Evidence Presented at Trial

       {¶6}    At approximately 7:30 p.m., on November 1, 2012, David Lowe (“David”)

discovered his uncle, Roy F. Rose, lying on the floor of his home on West 65th Street and

Madison Avenue, with his torso in the bathroom and his legs extended out towards the kitchen.

David testified that he saw a trail of blood on the kitchen floor and a garbage can that had been
knocked over, with its contents spilling out. Thinking he heard a noise, he became panicked and

ran out of the house. He drove to his brother, Wayne Lowe’s, house, picked Wayne up, and

brought him back to his uncle’s house within minutes of initially finding his uncle. Upon

arriving at Rose’s house, and after David had explained what he saw, Wayne phoned 911.

       {¶7}    Cleveland Police Officer Ismael Quintana responded to the scene. Upon arriving

at Rose’s house, Officer Quintana discovered Rose’s body in the bathroom with trauma to his

face. The officer testified that Rose appeared to be dead. Officer Quintana and his partner,

David Lam, discovered three tenants living in the upstairs of the home. One of the tenants,

William Atwell, testified that he heard a “big thud” from his upstairs bedroom. Another tenant,

Melby Miller, testified that around 7:30 p.m., he felt the building shake a little.

       {¶8}    Rose’s neighbor, Amanda Kamms, testified that she had seen Rose outside his

home approximately 6:30 p.m. on the evening of November 1. She stated that later that same

evening, approximately 7:30 p.m., she heard a “pop - pop” that sounded like a loud firecracker.

She paid no attention to the sound because, as she stated, “[there is] gunfire going off all over the

place in our neighborhood.”

       {¶9}    Cleveland Police detectives from the crime scene unit, upon the direction of the

homicide unit detectives, collected evidence and took photographs of the scene. The detectives

discovered and collected blood spots on the kitchen floor, the bathroom door frame, and papers

on the kitchen table. The detectives discovered the trash can that had been knocked over. The

trash can contained $21 cash and a wooden and gold-handled, folding knife with a broken

handle. The broken handle was recovered on the floor next to the trash can. There was blood

on both the butt end of the knife as well as the blade.
       {¶10} Detective Frank Costanzo recovered and removed a spent bullet from the ceiling

soffit in the kitchen and a spent bullet jacket and bullet fragment from under the kitchen table.

Homicide detective Arthur Echols testified, however, that the detectives could not draw a

conclusion regarding the recovered bullets because they were not discovered within the vicinity

of the victim. Detective Echols also testified that the bullets that did, in fact, penetrate Rose’s

body were never recovered.

       {¶11} The detectives also discovered medication, a handgun, and a knife on the table in

the living room area. Detective Echols testified that the handgun found on the table was fully

loaded with six rounds.

       {¶12} Cuyahoga County medical examiner, Dr. Thomas Gilson, examined Roy Rose’s

body at the scene. He observed gunshot wounds to the head and left arm (entrance and exit

wounds), as well as other “fresh injuries,” or scrapes, to the cheek, arm, and knee. He opined

that the scrapes were “relatively recent” due to the fact that there were no signs of healing.   Dr.

Gilson performed an autopsy on Rose and concluded that Rose died from a gunshot wound to the

head and to the left arm. He testified that the manner of death was homicide. He further

testified that the bullet that entered Rose’s forehead was fired at close range, “no further than a

couple inches away.”

       {¶13} Forensic scientist Lisa Przepynszy testified that she analyzed the victim’s clothing

for blood and defects such as bullet holes. In examining the defect in the victim’s shirt, she

concluded that the muzzle to target distance was approximately one to four feet, an intermediate

range. Ms. Przepynszy tested blood stains from Rose’s blue jeans and submitted them for DNA

testing. She also collected blood samples from a knife that was recovered from the scene and

she submitted them for DNA testing. She noted that the samples she collected from the knife
were submitted in addition to the samples previously collected from the police department at the

scene, which were submitted directly to the DNA department. Finally, Ms. Przepynszy tested

the spent bullets recovered at the scene. The spent bullet jacket and fragment discovered under

the table tested positive for the presence of blood.

       {¶14} Christine Scott, forensic DNA analyst, testified that she examined the victim’s

jeans and the blood samples from the kitchen floor, the door frame, papers from the kitchen

table, and the knife discovered in the trash can. Following laboratory testing of the samples,

Scott concluded that the laboratory test results revealed Pennington’s DNA on all of the samples.

 Scott also testified that the knife contained DNA from both Pennington and Rose.

       {¶15} April Chesbro, the victim’s daughter, testified that Rose kept $50,000 in his top

dresser drawer in his bedroom. He kept the money in small check boxes he had received from

the bank. Chesbro stated that when she was permitted to enter the home approximately one

week after Rose’s murder, she discovered that the large sum of money was no longer in the

dresser. She further testified that her father’s home was “a mess,” there were papers on the

floor that indicated a struggle, and it looked like someone had been in his bedroom because it

was “messier than normal” and it appeared that some items were “out of place and moved

around.” The medical examiner’s office returned to the family $1,301 of blood-stained money

discovered in Rose’s pocket.

       {¶16} Anita Miller, Pennington’s cousin, also testified for the state. She stated that a

couple of weeks prior to November 1, she heard Pennington discuss his plans to obtain a gun,

shoot someone that Pennington claimed owed him money for a roofing job, steal the individual’s

truck, and leave the state. She heard Pennington also say that he wanted to locate painkillers.

Miller further testified that a few days before the start of trial, she spoke with Pennington on the
telephone, during which time Pennington asked her to testify on his behalf, specifically asking

her to testify that he did not steal the victim’s money and that “the money was still in [Rose’s]

pocket.”

       {¶17} George Solley, Pennington’s close friend, testified that he saw Pennington on

November 5, 2012, and on that day, Pennington’s hand was injured.               Solley stated that

Pennington’s hand was cut open and looked white and red.               In response to the state’s

questioning, Solley stated that “a knife leaves both cuts and holes.” Pennington explained to

Solley that his hand was injured during a fight. Solley further testified that Pennington was

known to carry a wooden knife with a gold top and bottom and a locking blade. Finally, Solley

stated that Pennington planned to go to Kentucky and then on to Tennessee.

       {¶18} Detective Echols testified that Pennington was arrested in Tennessee on November

9, 2012, on the arrest warrant the detective issued. Detective Echols learned that Pennington

was arrested with an injury to his hand and abdomen, and he directed that photos be taken of

Pennington’s injuries.

       {¶19} Finally, the state presented to the jury a recorded telephone conversation between

Pennington and his sister, Nancy Pennington, that took place on September 30, 2013, which was

the afternoon of the first day of trial. During this conversation, Pennington expressed anger and

frustration over George Solley’s statement to the detectives about Pennington’s hand injury,

specifically objecting to Solley’s statement about “the holes, * * * not just the cut,” Pennington’s

“pocket knife,” and his plans to go to Tennessee. Pennington instructed his sister to thank

Solley “for keeping his f * * * mouth shut.”
                                      Assignments of Error1

       I. The trial court erred by finding Pennington guilty of aggravated murder,
       aggravated robbery, aggravated burglary, murder, and felonious assault, based
       upon insufficient evidence.

       II. The trial court erred by finding Pennington guilty of notice of prior conviction
       specifications relating to counts two, three, four, six, seven, and eight, based upon
       insufficient evidence.

       III. The trial court erred by finding Pennington guilty contrary to the manifest
       weight of the evidence.

       IV. The trial court erred by failing to grant Pennington’s motion for an
       independent competency evaluation.

       V. The trial court erred by permitting Anita Miller, an undisclosed pivotal
       witness, to testify in violation of Crim.R. 16.

       VI. Pennington’s defense counsel provided ineffective assistance of counsel by
       failing to subpoena the doctor who authored Pennington’s competency evaluation
       for purpose of Pennington’s competency evaluation hearing.

       VII.    Pennington’s defense counsel provided ineffective assistance of counsel by

       failing to move for a continuance, a voir dire, or a mistrial, based upon the State’s

       calling Anita Miller, an undisclosed pivotal witness, after the court swore-in the

       jury.

                                   Competency to Stand Trial

       {¶20} In his fourth assignment of error, Pennington contends that the trial court erred by

failing to grant his motion for an independent competency evaluation.

       {¶21} A person who “lacks the capacity to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist in preparing his defense” may not

stand trial. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 155, citing


        For ease of discussion, we will address the assignments of error out of order.
       1
Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). “Fundamental

principles of due process require that a criminal defendant who is legally incompetent shall not

be subjected to trial.” Id., citing State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995).

Competence is a question of a defendant’s mental condition; it is not a question of the

defendant’s physical state. State v. Kelley, 6th Dist. Lucas No. L-90-340, 1992 Ohio App.

LEXIS 102, * 8 (Jan. 17, 1992), citing R.C. 2945.37 and 2945.372; see also State v. Banks, 2d

Dist. Champaign No. 94-CA-14, 1995 Ohio App. LEXIS 889 (Mar. 10, 1995).

       {¶22} An adult defendant is presumed competent to stand trial:

       A defendant is presumed to be competent to stand trial. If, after a hearing, the
       court finds by a preponderance of the evidence that, because of the defendant’s
       present mental condition, the defendant is incapable of understanding the nature
       and objective of the proceedings against the defendant or of assisting in the
       defendant’s defense, the court shall find the defendant incompetent to stand trial *
       * *.

R.C. 2945.37 (G); Berry at 360.

       {¶23} The defense bears the burden of production to rebut the presumption of

competence. State v. Williams, 23 Ohio St.3d 16, 19, 490 N.E.2d 906 (1986).

       {¶24} Under R.C. 2945.37(B), a trial court must hold a hearing on the issue of a

defendant’s competency if the issue is raised prior to trial. State v. Jirousek, 8th Dist. Cuyahoga

No. 99641, 2013-Ohio-4796, ¶ 10. In a criminal proceeding, the competence of the defendant

may be raised by the court, the prosecutor, or the defense. R.C. 2945.37(B). If the issue of

competency is raised after the trial has commenced, however, the court shall hold a hearing on

the issue “only for good cause shown or on the court’s own motion.” Id.

       {¶25} Although a trial court is required to hold a hearing regarding a defendant’s

competency if the issue is raised prior to trial, the court may determine whether to order a
competency evaluation. State v. Woodley, 8th Dist. Cuyahoga No. 80732, 2003-Ohio-1950, ¶

26; State v. Johnson, 9th Dist. Summit No. 25620, 2011-Ohio-6417, ¶12. R.C. 2945.371(A)

provides that if the issue of a defendant’s competence is raised, or if a defendant enters a plea of

not guilty by reason of insanity, “the court may order one or more evaluations of the defendant’s

present mental condition or, in the case of a plea of not guilty by reason of insanity, of the

defendant’s mental condition at the time of the offense charged.”

       {¶26} There is no absolute right to an independent competency evaluation. State v.

Young, 8th Dist. Cuyahoga No. 80059, 2003-Ohio-272, ¶ 13, citing State v. Marshall, 15 Ohio

App.3d 105, 472 N.E.2d 1139 (8th Dist.1984). And the decision to order an evaluation is a

matter within the discretion of the trial court. State v. Perry, 5th Dist. Richland No. 00-CA-83,

2001 Ohio App. LEXIS 2820, * 14 (June 14, 2001), citing State v. Bailey, 90 Ohio App.3d 58,

67, 627 N.E.2d 1078 (11th Dist.1992). We therefore review the trial court’s decision to deny a

defendant’s motion for an independent competency evaluation for an abuse of that discretion.

See Johnson at ¶ 13.      An abuse of discretion implies that the trial court’s judgment was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶27} Here, prior to the start of trial, Pennington moved for an indefinite continuance of

trial based upon his assertion that he was “physically incompetent” to stand trial because of an

array of physical maladies, including liver failure.2 He claimed that medications he was taking




        According to the record, Pennington attached to his motion a CD containing more than 700
       2


pages of his medical records, which included records from MetroHealth Hospital and the jail
infirmary. The record on appeal does not include the CD containing Pennington’s medical records.
“interfere with his ability to concentrate” and his physical condition prevents him from being

able to attend and participate in his trial and, therefore, assist in his own defense.

          {¶28} The court ordered that Pennington undergo an examination by the court psychiatric

clinic for an evaluation of his competence to stand trial. In its order, the court requested that the

evaluation include, to the extent possible, an opinion on Pennington’s ability to be present for

and participate in courtroom proceedings and how normal proceedings may be modified to

accommodate any infirmities Pennington may have. The court scheduled a competency hearing

for July 16, 2013.

          {¶29} At the competency hearing, the only evidence presented in support of Pennington’s

alleged incompetence was his medical records. Pennington’s counsel objected to the state’s

suggestion to stipulate to the contents of the evaluation performed by Dr. Karl E. Mobbs of the

court psychiatric clinic and did not secure his testimony for the hearing. Counsel claimed that

the competency evaluation failed to properly address Pennington’s medical issues, with the

exception of Dr. Mobbs’s notation that “Pennington tolerated the one-hour interview well” and

that “the court allowing him breaks during the trial would be a good idea.” Defense counsel

claimed that there was nothing in Dr. Mobbs’s report to indicate that any of Pennington’s

medical records were even considered.         At the close of the hearing, Pennington’s counsel

requested an independent competency evaluation in order to ascertain that Pennington is “not

medically competent” to stand trial, conceding that Pennington’s mental status “was never at

issue.”

          {¶30} On July 29, 2013, the trial court issued an order finding Pennington competent to

stand trial and denying Pennington’s motion for a continuance and motion for a second,

independent competency evaluation. In its order, the court noted that it reviewed the medical
records submitted by Pennington and stated that, “although [Pennington’s] numerous conditions

are no doubt serious, nowhere in the records is there a suggestion that any of Pennington’s

doctors are of the opinion that he cannot adequately participate in a trial.”3 The court further

noted that Pennington provided no testimonial evidence about his medical condition. The court

found, upon its review of the medical records submitted, that Pennington: has not overcome the

presumption that he is mentally competent to stand trial; cannot demonstrate that a “‘present

mental condition’ prevents [him] from understanding the nature and objective of the proceedings

against him or of assisting in his defense”; and cannot show that he is not physically well enough

to attend his trial.

        {¶31} In light of the above, we cannot find that the trial court abused its discretion in

denying Pennington’s motion for an independent competency evaluation. When Pennington

raised the issue of competency prior to trial, the trial court ordered a competency evaluation and

held a hearing. The only evidence presented at the hearing was Pennington’s medical records,

none of which indicated that Pennington’s physical conditions would prevent him from attending

his trial or contributing to his defense. Further, there was no evidence that Pennington suffered

from a mental condition that prevented him from understanding the nature and objective of the

proceedings against him. Pennington’s counsel, in fact, conceded that Pennington’s mental



         Pennington’s medical records that were reviewed by the court include: a July, 2012
        3


emergency department visit for right foot and ankle pain after falling from a ladder seven months
before; a December 4, 2012 admission for a possible right pelvic fracture after falling while walking
with a cane; a January 30, 2013 admission for right upper quadrant pain where Pennington was
discharged on February 1, 2013, without restrictions; an April 26 through May 10, 2013 admission for
probable staph infection; a May 14, 2013 hospital visit, apparently for congestive heart failure; and a
review of other diagnoses, such as hepatitis C, cirrhosis of the liver, pancytopenia (a blood cell
deficiency), and acute kidney injury.
status was not an issue. We therefore affirm the trial court’s denial of Pennington’s motion for

an independent competency evaluation.

       {¶32} Pennington’s fourth assignment of error is overruled.

                                    Nondisclosure of a Witness

       {¶33} In his fifth assignment of error, Pennington claims that the trial court erred by

permitting Anita Miller to testify in violation of Crim.R. 16. Specifically, Pennington objects to

the court allowing the state to call Miller, who was not disclosed prior to trial as a potential

witness. Pennington argues that the untimely disclosure of this witness amounted to a willful

violation that prejudiced his defense and warranted exclusion of the witness at trial. The state

submits that it learned of the witness through Pennington, it provided the witness’s name as soon

as it learned of the witness, even before learning the substance of her testimony, and its actions

upon learning of the witness were timely and reasonable.

       {¶34} Crim.R. 16 governs discovery matters in a criminal proceeding. The purpose of

this rule is “to provide the parties in a criminal case with the information necessary for a full and

fair adjudication of the facts, to protect the integrity of the justice system, the rights of

defendants, and the well-being of witnesses, victims, and society at large.” Crim.R. 16(A).

Crim.R. 16(I), which governs the disclosure of witnesses, provides that “[e]ach party shall

provide to opposing counsel a written witness list, including names and addresses of any witness

it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal.”

Under Crim.R. 16(L)(1), if it is brought to the attention of the trial court that a party has failed to

comply with this discovery rule, the trial court may order or permit the discovery, order a

continuance, prohibit the party from introducing the material not disclosed, or make any other
order it deems just under the circumstances. State v. Miller, 8th Dist. Cuyahoga No. 100461,

2014-Ohio-3907, ¶ 66.

       {¶35} A trial court has broad discretion in regulating discovery and in determining the

appropriate sanction for discovery violations. State v. Smiler, 8th Dist. Cuyahoga No. 100255,

2014-Ohio-1628, ¶ 13, citing State v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991). Upon

imposing a sanction, however, the trial court must conduct an inquiry into the surrounding

circumstances and impose “the least severe sanction that is consistent with the purpose of the

rules of discovery.”    Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987),

paragraph two of the syllabus.

       {¶36} Three factors that govern a trial court’s exercise of discretion in imposing a

sanction for a discovery violation include (1) whether the failure to disclose was a willful

violation of Crim.R. 16; (2) whether foreknowledge of the undisclosed material would have

benefitted the accused in the preparation of a defense; and (3) whether the accused was

prejudiced. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, citing

State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983), syllabus. We review a trial court’s

sanction for a discovery violation for an abuse of discretion. State v. Tran, 8th Dist. Cuyahoga

No. 100057, 2014-Ohio-1829, ¶ 9.

       {¶37} Here, the record reveals that the state first became aware of Anita Miller at some

point during jury selection, from Crystal Calhoun, a potential state’s witness, who mentioned

Miller in the context of a potential witness for the defense. In response to this information,

Detective Arthur Echols then began to research Miller and attempted to locate her. During the

lunch break on Monday, September 30, the first day of trial, the state listened to Pennington’s

recorded jail cell phone calls that were made over the weekend. At this time, the state learned
that on either September 27 or 28, the weekend before trial, a jail cell telephone conversation

took place between Pennington and his sister, Nancy Pennington, concerning Miller. During

this conversation, Pennington contemplated calling Miller as his witness in order to impeach a

state’s witness. Specifically, Pennington instructed Nancy to ensure that Miller would not say

anything damaging against him at trial. At approximately 5:00 p.m. the same day the prosecutor

listened to the recorded conversations, the state supplemented its witness list to include Anita

Miller.     Thereafter, the state learned from Detective Echols of the substance of Miller’s

testimony.

          {¶38} On Tuesday morning, October 1, before the commencement of the second day of

trial, the state provided to the defense a summary of the substance of Miller’s testimony.

Pennington objected to Miller’s testimony. In response, the court heard arguments from both

the state and the defense concerning Miller’s testimony and the facts that led to Miller’s inclusion

on the witness list. The court then overruled Pennington’s objection and ordered the state to

make Detective Echols available to the defense “for a reasonable length of time so that

[Pennington] can get some greater detail * * *on the content of [Miller’s] anticipated testimony.”

          {¶39} In light of the above, we cannot find that the state’s failure to disclose Anita Miller

as a potential witness prior to trial was a willful violation of Crim.R. 16.              The record

demonstrates that, in light of the circumstances upon which the state discovered Anita Miller, the

state’s disclosure of Miller as a witness was timely and reasonable.             Further, Pennington

provides no evidence that the prosecutor had knowledge of Miller’s identity and testimony prior

to the time of the prosecutor’s disclosure.

          {¶40} Moreover, even assuming that the prosecutor’s disclosure of the witness after trial

had commenced constituted a discovery violation, we find that the trial court imposed the least
severe sanction consistent with the discovery rules. Specifically, the trial court provided defense

counsel the opportunity to interview Detective Echols in order to explore the content of Miller’s

anticipated testimony before Miller testified, thus removing any unfair surprise or prejudice. See

Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, at ¶ 69. We therefore find no abuse of

discretion by the trial court in permitting the testimony of Anita Miller.

       {¶41} Pennington’s fifth assignment of error is overruled.

                       Sufficiency and Manifest Weight of the Evidence

       {¶42} Pennington claims that the state failed to provide sufficient evidence upon which to

convict him of aggravated murder, aggravated robbery, aggravated burglary, murder, felonious

assault, and a firearm specification.     He also argues that his convictions were against the

manifest weight of the evidence.

       {¶43} When assessing a challenge of sufficiency of the evidence, a reviewing court

examines the evidence admitted at trial and determines whether such evidence, if believed,

would convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.

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

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Id. A reviewing court is not to assess “whether the state’s evidence is to be

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

 State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

       {¶44} While the test for sufficiency of the evidence requires a determination whether the

state has met its burden of production at trial, a manifest weight challenge questions whether the
state has met its burden of persuasion. Thompkins at 390. Also unlike a challenge to the

sufficiency of the evidence, a manifest weight challenge raises a factual issue.

       “The court, reviewing the entire record, weighs the evidence and all reasonable
       inferences, considers the credibility of witnesses and determines whether in
       resolving conflicts in the evidence, the jury clearly lost its way and created such a
       manifest miscarriage of justice that the conviction must be reversed and a new
       trial ordered. The discretionary power to grant a new trial should be exercised
       only in the exceptional case in which the evidence weighs heavily against the
       conviction.”

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶45} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus.      When examining witness credibility, “the choice between

credible witnesses and their conflicting testimony rests solely with the finder of fact and an

appellate court may not substitute its own judgment for that of the finder of fact.” State v.

Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some,

or none of the testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga

No. 98538, 2013-Ohio-1184, ¶ 18.

       {¶46} We note initially that the elements of an offense may be established by direct

evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674

(1991). Circumstantial evidence is testimony that is not based on actual personal knowledge or

observation of controversial facts, rather it is based on “‘“other facts from which deductions are

drawn, showing indirectly the facts sought to be proved.”’” State v. Powell, 8th Dist. Cuyahoga

No. 99386, 2014-Ohio-2048, ¶ 6, quoting State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d

1236 (1988), quoting Black’s Law Dictionary 221 (5th Ed.1979). Circumstantial and direct

evidence are of equal evidentiary value. State v. Santiago, 8th Dist. Cuyahoga No. 95333,
2011-Ohio-1691, ¶ 12. And in some cases, circumstantial evidence may be “‘more certain,

satisfying and persuasive than direct evidence.’” State v. Lott, 51 Ohio St.3d 160, 167, 555

N.E.2d 293 (1990), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5

L.Ed.2d 20 (1960).

       {¶47} Pennington was convicted of aggravated murder in violation of R.C. 2903.01(B),

murder in violation of R.C. 2903.02(B), aggravated robbery in violation of R.C. 2911.01(A)(3),

aggravated burglary in violation of R.C. 2911.11(A)(1), and two counts of felonious assault, in

violation of R.C. 2903.11(A)(1) and (2).          Pennington was also convicted of a firearm

specification in violation of R.C. 2941.145(A).

       {¶48} R.C. 2903.01(B), aggravated murder, provides that

       [n]o person shall purposely cause the death of another * * * while committing or
       attempting to commit, or while fleeing immediately after committing or
       attempting to commit, * * * aggravated robbery, robbery, aggravated burglary,
       burglary, trespass in a habitation when a person is present or likely to be present,
       terrorism, or escape.

       {¶49} A person acts purposely when it is his “specific intention to cause a certain result,

or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is his specific intention to engage in conduct

of that nature.” R.C. 2901.22(A). “Purpose,” therefore, depends on an intended result. State

v. Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 72.

       {¶50} Circumstantial evidence can be used to demonstrate purpose or intent. State v.

Martin, 8th Dist. Cuyahoga No. 91276, 2009-Ohio-3282, ¶ 23.              Intent may therefore be

ascertained from the surrounding facts and circumstances in the case:

       “[The] surrounding facts and circumstances include the nature of the instrument
       used, its tendency to end life if designed for that purpose, and the manner in which
       any wounds were inflicted. A jury can infer intent to kill by the defendant’s use
       of a firearm, an inherently dangerous instrumentality, the use of which is likely to
       produce death.”

Id., quoting State v. Mackey, 8th Dist. Cuyahoga No. 75300, 1999 Ohio App. LEXIS 5902 (Dec.

9, 1999); see State v. Tibbs, 1st Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶ 48 (shooting

victim in the face and head from close range during the course of aggravated robbery

demonstrated a specific intent to kill).

       {¶51} Under R.C. 2903.02(B), felony murder, “[n]o person shall cause the death of

another as a proximate result of the offender’s committing or attempting to commit an offense of

violence that is a felony of the first or second degree[.]”

       {¶52} R.C. 2911.01(A)(3), aggravated robbery, states that

       [n]o person, in attempting or committing a theft offense, as defined in section

       2913.01 of the Revised Code, or in fleeing immediately after the attempt or

       offense, shall * * * [i]nflict, or attempt to inflict, serious physical harm on

       another.

       {¶53} R.C. 2911.11(A)(1), aggravated burglary, provides that

       [n]o person, by force, stealth, or deception, shall trespass in an occupied structure

       or in a separately secured or separately occupied portion of an occupied structure,

       when another person other than an accomplice of the offender is present, with

       purpose to commit in the structure or in the separately secured or separately

       occupied portion of the structure any criminal offense, if * * * [t]he offender

       inflicts, or attempts or threatens to inflict physical harm on another.

       {¶54} Criminal trespass is defined as knowingly entering or remaining on the premises of

another “without privilege to do so.”         R.C. 2911.21(A)(1). “Privilege” is defined as “an
immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of

status, position, office, or relationship, or growing out of necessity.” R.C. 2901.01(A)(12).

The commission of a violent crime committed in the residence of one other than the defendant

terminates the privilege to remain in the home, and such conduct always constitutes aggravated

burglary. State v. Mitchell, 8th Dist. Cuyahoga No. 94287, 2010-Ohio-5775, ¶ 15, citing State v.

Steffen, 31 Ohio St.3d 111, 115, 509 N.E.2d 383 (1987); State v. Campbell, 8th Dist. Cuyahoga

Nos. 100246 and 100247, 2014-Ohio-2181, ¶ 35. Therefore, even if the defendant lawfully

gained entry to another’s residence, the privilege to remain in the home was revoked once the

defendant assaulted the resident. Id.

       {¶55} Under R.C. 2903.11(A), felonious assault, “[n]o person shall knowingly * * * (1)

[c]ause serious physical harm to another * * *, or (2) [c]ause or attempt to cause physical harm to

another * * * by means of a deadly weapon or dangerous ordnance.”

       {¶56} And finally, R.C. 2941.145(A), the firearm specification, requires proof beyond a

reasonable doubt that “the offender had a firearm on or about the offender’s person or under the

offender’s control while committing the offense and displayed the firearm, brandished the

firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense.”

       {¶57} Pennington argues that the evidence presented at trial was insufficient to convict

him of all counts. Specifically, he claims that the state failed to produce any physical evidence

that he possessed or fired a firearm, or that he used one to fatally wound the victim. Pennington

submits that the state failed to provide any physical evidence linking him to a firearm, stating that

he did not have a firearm when he was arrested, nor did the state provide a positive gunshot

residue analysis. Finally, Pennington claims there is insufficient evidence demonstrating that he

committed a burglary or a robbery, stating that the state provided no credible evidence that the
victim possessed a large sum of money or that this money was taken by him. We find, however,

that Pennington’s arguments are without merit, and the state provided sufficient circumstantial

and direct evidence to support his convictions.

       {¶58} Here, the state provided the testimony of Anita Miller, Pennington’s cousin.

Miller testified that Pennington planned to obtain a gun, shoot someone who purportedly owed

him money, steal the individual’s truck, and leave the state. The evidence showed that Rose

died from a gunshot wound to the head and to the left arm. The gunshot wound to the head was

fired at close range. Pennington’s friend, George Solley, testified that Pennington had an injury

to his hand that resembled a hole and he was planning to leave the state. He also testified that

Pennington typically carried a wooden knife with a gold top and bottom and locking blade. A

knife matching that description was discovered in pieces in a knocked-over trash can and on the

floor at the scene. And Pennington’s DNA was found on the kitchen floor, the door frame,

papers on the kitchen table, the knife found in the trash can, and on the victim’s jeans. The

knife also contained the victim’s DNA. Pennington was arrested in Tennessee approximately

one week after the murder with injuries to his hand and his abdomen. The state presented

evidence of Pennington’s own angry words in a jail phone call to his sister during which

Pennington expressed frustration over George Solley’s testimony against him.

       {¶59} Additionally, the state provided the testimony of Rose’s daughter, April Chesbro.

Chesbro testified that Rose kept $50,000 in his dresser drawer in his bedroom and this money

was gone after her father’s murder. She also testified that, upon returning to her father’s house,

she found that his bedroom was “messier than usual” and it appeared that someone had been in

the bedroom because items were “out of place and moved around.” She further testified that

$1,301 of blood-stained money was recovered from her father’s pocket. Miller testified that
Pennington asked her to testify that he did not steal the victim’s money, but rather, the money

was in Rose’s pocket.

       {¶60} Based upon the above, after viewing the evidence, both direct and circumstantial,

in a light most favorable to the prosecution, we find that any rational trier of fact could have

found the crimes proved beyond a reasonable doubt. Moreover, we find the jury’s verdicts were

supported by the manifest weight of the evidence.          Pennington’s argument that the state’s

witnesses were not credible is not well taken. Credibility is within the province of the trier of

fact, and the jury was free to believe all, part, or none of the testimony of each witness. We

cannot say that this is the exceptional case where the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

       {¶61} Pennington’s first and third assignments of error are overruled.

                                       Notice of Prior Conviction

       {¶62} Pennington also claims in the second assignment of error that there was insufficient

evidence upon which to convict Pennington of the notice of prior conviction specifications

pertaining to counts two, three, four, six, seven, and eight.

       {¶63} Pennington was charged with notice of prior conviction specifications under R.C.

2929.13(F)(6) in Counts 2, 3, 4, 6, 7, and 8. The specifications were tried to the court. The

state admitted on the record that it did not introduce evidence of Pennington’s prior convictions.

Thereafter, having found no evidence supporting the prior convictions, the trial court found

Pennington not guilty of the specifications.     The court’s sentencing journal entry of October 7,

2013, however, erroneously reflected that Pennington was found guilty of the specifications

relating to the above stated counts.
       {¶64} Although a court speaks through its journal entries, clerical errors may be corrected

at any time in order to conform to the transcript of the proceedings. State v. Steinke, 8th Dist.

Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 47; Crim.R. 36.                Trial courts retain continuing

jurisdiction to correct clerical errors in judgments by nunc pro tunc entry to reflect what the court

actually decided. In re D.P., 8th Dist. Cuyahoga No. 100597, 2014-Ohio-3324, ¶ 10, citing

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.

       {¶65} Here, the record clearly reflects that Pennington was found not guilty of the notice

of prior conviction specification attendant to Counts 2, 3, 4, 6, 7, and 8. The court’s sentencing

journal entry reflecting a finding of guilt as to the specification is a clerical error. We therefore

remand the case for the trial court to correct its sentencing journal entry of October 7, 2013, nunc

pro tunc, to accurately reflect what the court actually decided.

                                Ineffective Assistance of Counsel

                                                 A.

       {¶66} In his sixth assignment of error, Pennington claims that his defense counsel

provided ineffective assistance of counsel by failing to subpoena the doctor who authored

Pennington’s competency evaluation for purpose of Pennington’s competency evaluation

hearing. We disagree.

       {¶67} In order to establish a claim of ineffective assistance of counsel, Pennington must

prove (1) his counsel was deficient in some aspect of his representation, and (2) there is a

reasonable probability that, were it not for counsel’s errors, the result of the trial would have been

different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In

Ohio, every properly licensed attorney is presumed to be competent and, therefore, a defendant
claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17 Ohio

St.3d 98, 100, 477 N.E.2d 1128 (1985).

       {¶68} Counsel’s performance will not be deemed ineffective unless and until the

performance is proven to have fallen below an objective standard of reasonable representation

and, in addition, prejudice arises from counsel’s performance. State v. Iacona, 93 Ohio St.3d

83, 105, 752 N.E.2d 937 (2001).        Furthermore, decisions on strategy and trial tactics are

generally granted wide latitude of professional judgment, and it is not the duty of a reviewing

court to analyze the trial counsel’s legal tactics and maneuvers.        State v. Gau, 11th Dist.

Ashtabula No. 2005-A-0082, 2006-Ohio-6531, ¶ 35, citing Strickland. Courts must generally

refrain from second-guessing trial counsel’s strategy, even where that strategy is “questionable,”

and appellate counsel claims that a different strategy would have been more effective. State v.

Jalowiec, 91 Ohio St.3d 220, 237, 744 N.E.2d 163 (2001).

       {¶69} As previously discussed, a defendant is legally incompetent if, because of his

present mental condition, he is incapable of understanding the nature and objective of the

proceedings against him or of assisting in his defense.         R.C. 2945.37(G).      Competence,

therefore, is a question of a defendant’s mental condition. Kelley, 6th Dist. Lucas No. L-90-340,

1992 Ohio App. LEXIS 102, at * 8.

       {¶70} Here, Pennington’s trial counsel raised the issue of physical competency, claiming

that Pennington’s physical ailments prevented him from participating in the proceedings.

Counsel conceded that Pennington’s mental status is not in question. Further, the record is

devoid of any evidence demonstrating that Pennington suffered from a mental illness that could

interfere with his ability to understand the nature of the proceedings or assist in his own defense.

Moreover, Pennington provides no evidence that had Dr. Mobbs testified at the competency
hearing, Pennington would have been found incompetent to stand trial. We therefore do not find

that trial counsel was ineffective by failing to subpoena Dr. Mobbs.

       {¶71} Pennington’s sixth assignment of error is overruled.

                                                 B.

       {¶72} In his seventh assignment of error, Pennington claims that his defense counsel

provided ineffective assistance of counsel by failing to move for a continuance, a voir dire, or a

mistrial, based upon the state’s calling Anita Miller to testify. Again, we disagree.

       {¶73} In light of the record before us, and our finding that the trial court’s allowance of

Miller’s testimony was proper under the circumstances, we cannot find that trial counsel’s

performance fell below an objective standard of reasonable representation.           As previously

discussed in Pennington’s fifth assignment of error, Pennington’s trial counsel objected to the

allowance of Miller’s testimony immediately upon learning of the state’s intention to call her and

zealously argued in opposition to her testimony. Following the hearing on Tuesday, October 1,

and defense counsel’s objection, the trial court ordered that Detective Echols be made available

for a reasonable period of time for the specific purpose of providing the defense an opportunity to

learn the substance of Miller’s testimony, thereby mitigating any unfair surprise or prejudice.

And when Miller took the stand one day later, on Wednesday, October 2, defense counsel

cross-examined her. Appellate counsel’s statement that a continuance or voir dire would have

mitigated the defense’s ignorance of the substance of Miller’s testimony is not well taken. Nor

is it evidence that trial counsel was ineffective for not seeking a continuance.   See Jalowiec, 91

Ohio St.3d at 237, 744 N.E.2d 163 (2001).

       {¶74} Moreover, even had we found counsel’s performance to be deficient, Pennington

has failed to show how a continuance or voir dire would have changed the outcome of the trial.
We therefore do not find that trial counsel was ineffective for not seeking a continuance or voir

dire of Anita Miller.

       {¶75} Pennington’s seventh assignment of error is overruled.

       {¶76} Judgment affirmed, and remanded for the limited purpose of correcting the trial

court’s sentencing entry to reflect that Pennington was found not guilty of the notice of prior

conviction specification attendant to Counts 2, 3, 4, 6, 7, and 8.

       {¶77} It is ordered that appellee recover of 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.       Case remanded to the trial court for execution of

sentence.

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

Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
