[Cite as State v. Winters, 2016-Ohio-928.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102871



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       TROY WINTERS
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              AFFIRMED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-15-583833-B

        BEFORE: Boyle, J., Keough, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                   March 10, 2016
ATTORNEY FOR APPELLANT

Walter H. Edwards, Jr.
614 W. Superior Avenue, Suite 1300
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Troy Winters, appeals his conviction and the

imposition of court costs, raising the following five assignments of error:

              I. The appellant’s convictions are against the manifest weight of
       the evidence where the government failed to prove the identity of the actor.

              II. Trial counsel was ineffective when counsel failed to present
       testimony regarding the unreliability of eyewitness identification testimony.

              III. Trial counsel was ineffective for failing to request a Telfaire
       jury instruction.

              IV. Trial counsel was ineffective when it failed to request a castle
       doctrine jury instruction.

              V. The trial court erred in imposing court costs in the journal entry
       when the court agreed not to impose costs at the time of the sentencing
       hearing.

       {¶2} After a thorough review of the record and arguments raised, we affirm

Winters’s convictions but remand the matter for a nunc pro tunc correction of the

sentencing entry to indicate that court costs are waived.

       A. Procedural History and Facts

       {¶3} In April 2014, Winters, along with two codefendants, David Capp and John

Jones, was indicted on the following three counts in connection with the shooting of

James Marshall: (1) felonious assault in violation of R.C. 2903.11(A)(1); (2) felonious

assault in violation of R.C. 2903.11(A)(2); and (3) discharging of a firearm on or near

prohibited premises in violation of R.C. 2923.162(A)(3).     All three counts carried a one-

and three-year firearm specification.   Winters pleaded not guilty to the charges and the
matter proceeded to a jury trial.      We set forth the following relevant facts to the

disposition of this appeal.

         {¶4} Jennifer Hayne testified that on March 18, 2014 at 2:45 p.m. — 15 minutes

before the end of her work shift — she received a telephone call from her neighbor that

Capp was at her house.        Hayne explained that Capp was an ex-boyfriend, who she

stopped talking to three weeks earlier.    Hayne further explained that she was currently

dating the father of her oldest daughter, James Marshall, who she had known for the past

13 years and dated intermittently throughout that time. At the end of her shift, Hayne

immediately drove home and called Capp, who was no longer at her house.       According

to Hayne, Capp was “very irate” and told her that he was coming over to the house “to

beat my boyfriend up.”        Ten minutes later, Capp arrived at the house in a red S-10

pickup truck, driven by Winters, whom Hayne had first met in 2007 and considered an

acquaintance.

         {¶5} According to Hayne, both men were very disrespectful; Winters asked,

“where’s your boyfriend at?       When’s he coming?”    And then he threatened, “we got

something for him.”       Hayne further testified that Capp was “screaming, yelling,

cussing.”    Hayne called Marshall and told him that Capp and Winters were outside the

house.      The men waited approximately 15 minutes and then left.        Minutes later,

Marshall and his father arrived at Hayne’s house.    Shortly thereafter, Capp and Winters

returned to the house.
       {¶6} Hayne testified that she was standing in the front yard of her house when

she observed Winters pulling up in a red S-10 pickup truck and parking approximately

“two to three” houses away.     She pointed the truck out to Marshall, who walked toward

the truck.   Hayne further testified that she did not see Capp right away but noticed him

when “he popped up from the bed of the truck,” stating “T, we’re going to spray this bitch

up and dip.” Immediately following this statement, “gunshots started going off.” At

this point, Marshall was standing on the driver’s side of the vehicle, near the driver’s

door, and was shot three times in his legs.

       {¶7} The next day, Hayne met with Sergeant Shoulders of the Cleveland Police

Department and identified Winters in a photo array presented to her.      Hayne indicated

that she was “100% certain” of her identification of Winters.   She further identified John

Jones as the front-seat   passenger, indicating that she was “99%   certain.”

       {¶8} The state presented the testimony of Marshall, who corroborated much of

Hayne’s testimony. Marshall testified that Hayne called him on March 18, 2014, while

he was attending an outpatient program.       According to Marshall, Hayne seemed “real

frantic” and he could hear Capp in the background, screaming “Fuck you bitch.         Tell

him to come on. I’m about to fuck you all up.” Marshall left his meeting and met his

father, who was outside waiting for him, and the two of them immediately went to

Marshall’s house that he shared with Hayne.

       {¶9} Marshall testified that they arrived home around 3:30 p.m. and that there

was a group of neighbors outside the home. Minutes later, a red S-10 pickup truck
pulled up on the street and stopped approximately 60 feet from Marshall’s house.

Marshall approached the truck.       Although Marshall observed the driver, he did not

recognize him at first but later learned his identity to be Winters.          According to

Marshall, upon reaching the truck, the first thing that he noticed was the opened

driver’s-side door and then he saw the front-seat passenger hand Winters a gun.       Next,

Marshall heard Capp, who was in the back of the truck, state “kill that mother fucker.”

Immediately following, Winters had the gun in his hand, firing a shot and hitting the

ground next to Marshall’s foot. Marshall further testified that Winters shot the gun three

more times, with two bullets hitting Marshall’s left thigh and one bullet entering his right

thigh.    After the shots were fired, the red truck sped away.

         {¶10} Marshall further testified that he correctly identified Capp in a photo array

following the shooting. In identifying Capp, he stated that he was 95 percent certain.

Marshall additionally explained that he identified someone other than Winters as the

driver in a photo array. With respect to that photo array, he indicated that he was 60

percent certain.    Marshall further explained that he was more focused on the gun and

that, unlike Capp whom he knew, he did not know Winters or the front-seat passenger.

         {¶11} The state additionally offered two witnesses — Marshall’s father and

Tabitha Pierce — both of whom were present at the scene and specifically testified that

they observed the driver of the vehicle shoot Marshall.     Pierce, a next-door neighbor of

Hayne, further testified that she first observed Hayne outside her house arguing with two

males and that both of those males, along with another male, were later present at the
shooting.   Specifically, Pierce identified the driver of the red pickup truck and the male

in the bed of the truck as being present at the house earlier arguing with Hayne.       Pierce

additionally testified that the driver, who was also the driver of the truck earlier, shot

Marshall.   Pierce further testified that the two males were seated in the courtroom.

       {¶12} Winters presented a single witness to testify as to his whereabouts on March

18, 2014. Kimberly Bartlett, a bailiff for Judge Pamela Barker at the Cuyahoga County

Court of Common Pleas, testified that Winters appeared for a morning pretrial on March

18, 2014.   Bartlett further testified that Judge Barker’s criminal docket ended that day by

11:30 a.m. Although Bartlett was unaware as to what time Winters left Judge Barker’s

floor, she stated that Winters was not in their courtroom in the afternoon.

       {¶13} The jury ultimately found Winters guilty on all the charges. At sentencing,

the trial court merged the two felonious assault counts and imposed an aggregate sentence

of 11 years in prison.

       {¶14} This appeal follows.

       B. Manifest Weight of the Evidence

       {¶15} In his first assignment of error, Winters argues that his conviction is against

the manifest weight of the evidence because it is based solely on unreliable,

eyewitness-identification testimony.

       {¶16} A challenge to the manifest weight of the evidence attacks the credibility of

the evidence presented. State v. Thompkins, 78 Ohio St.3d 387, 678 N.E.2d 54 (1997).

Because it is a broader review, a reviewing court may determine that a judgment of a trial
court is sustained by sufficient evidence, but nevertheless conclude that the judgment is

against the weight of the evidence. Id., citing State v. Robinson, 162 Ohio St. 486, 487,

124 N.E.2d 148 (1955).

      {¶17} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing so, it must

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine “‘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.’” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).          Reversing a

conviction as being against the manifest weight of the evidence and ordering a new trial

should be reserved for only the “exceptional case in which the evidence weighs heavily

against the conviction.” Id.

      {¶18} Winters contends that the jury lost its way by believing Hayne, who

positively identified him as the shooter. Winters argues that Hayne’s identification was

highly unreliable based on her location at the time of the shooting and the short duration

of time that the shooter was visible.    He further contends that Hayne misidentified

Winters as the shooter because she saw him driving the truck prior to the shooting. We

find Winters’s argument lacks merit.

      {¶19} First, determinations of credibility and weight of the testimony remain

within the province of the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus.   “‘Even where discrepancies exist, eyewitness

identification testimony alone is sufficient to support a conviction so long as a reasonable

juror could find the eyewitness to be credible.’” State v. Robinson, 8th Dist. Cuyahoga

No. 100126, 2014-Ohio-1624, ¶ 12, quoting State v. Johnson, 8th Dist. Cuyahoga No.

99822, 2014-Ohio-494, ¶ 52; citing State v. Jordan, 10th Dist. Franklin No. 04AP-827,

2005-Ohio-3790, ¶ 14. Contrary to Winters’s assertion, we disagree that Hayne’s

identification was “highly unreliable.”   First, the evidence established that Hayne was

well acquainted with Winters, who earlier that day had been at Hayne’s house.      There is

no evidence in the record to support Winters’s claim that Hayne “was not in a good

position to identify the shooter.” The shooting took place in the afternoon in March.

Hayne was outside her house, approximately 60 feet away — we can hardly say that such

a distance renders an identification “highly unreliable.”     There was no evidence that

Hayne’s view was somehow obstructed.            Further, Hayne unequivocally identified

Winters as the shooter in the photo array presented the day following the shooting and

again in court. We cannot say that the jury lost its way in believing Hayne.

       {¶20} Further, in attacking the credibility of Hayne, Winters ignores the other

evidence offered that corroborated Hayne’s testimony.         Notably, Winters does not

dispute the evidence of him being at Hayne’s house earlier and that he was seen driving

the red truck. Based on that evidence, Pierce’s testimony also established that Winters

was the shooter.   Pierce specifically testified that the driver of the truck shot Marshall
and that the driver was the same person seen at Hayne’s house earlier driving the red

truck. Thus, Hayne was not the only person who identified Winters as the shooter.

       {¶21} And while Winters attempted to establish an alibi at the time of the

shooting, his single witness’s testimony only established Winters’s whereabouts in the

morning on March 18, 2014.       Here, the shooting took place in the afternoon, well after

the time that Winters’s pretrial concluded.

       {¶22} This is not the exceptional case where the evidence weighs against the

conviction.

       {¶23} The first assignment of error is overruled.

       C. Ineffective Assistance of Counsel

       {¶24} In his second, third, and fourth assignments of error, Winters argues that he

was denied effective assistance of counsel because his trial counsel (1) failed to present

expert testimony on the unreliability of eyewitness identification, (2) failed to request a

Telfaire jury instruction, and (3) failed to request a castle doctrine jury instruction.   We

disagree.

       {¶25} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.            Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus.

       {¶26} The burden is on appellant to prove ineffectiveness of counsel.         State v.

Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Trial counsel is strongly presumed to

have rendered adequate assistance. Id.; Strickland at 699.       “Trial strategy or tactical

decisions cannot form the basis for a claim of ineffective counsel.” State v. Foster, 8th

Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v. Clayton, 62 Ohio St.2d

45, 402 N.E.2d 1189 (1980).

       1. Eyewitness Expert Testimony

       {¶27} Winters first argues that his trial counsel was ineffective by failing to

present an expert witness as to the unreliability of eyewitness-identification evidence.

Relying on the same reasons presented in his first assignment of error attacking the

reliability of Hayne’s identification, as well as the fact that Marshall initially identified

someone else as the shooter, Winters argues that the conflicting evidence demonstrates

the need for an expert witness.   He specifically states that the “prejudice is clear because

the identification testimony in the instant case was conflicting.” We find Winters’s

argument, however, misplaced.

       {¶28} Following Ohio Supreme Court precedent, this court has held that the failure

to call an expert in eyewitness identification and instead rely on cross-examination does

not constitute ineffective assistance of counsel.        State v. Witherspoon, 8th Dist.

Cuyahoga No. 94475, 2011-Ohio-704, ¶ 40; State v. Hayes, 8th Dist. Cuyahoga No.
93785, 2010-Ohio-5234, ¶ 32; citing State v. Nichols, 66 Ohio St.3d 431, 436, 613 N.E.2d

225 (1993). “In many criminal cases, such a decision by trial counsel is unquestionably

tactical because such an expert might uncover evidence that further inculpates the

defendant.” State v. Glover, 12th Dist. Clermont No. CA2001-12-102, 2002-Ohio-6392,

¶ 25, citing State v. Walker, 3d Dist. Seneca No. 13-2000-26, 2001-Ohio-2119.

       {¶29} Here, Winters’s primary defense at trial was that the state had prosecuted the

wrong person, relying heavily on Marshall’s initial identification wherein Marshall

selected another person as the shooter in the photo array. Trial counsel cross-examined

Marshall, emphasizing his photo array identification of another person, which was made

close in time to the shooting.   Defense counsel further cross-examined Hayne, attacking

the credibility of her identification on the basis that she could not recall what Winters was

wearing at the time of the shooting. Given that Hayne knew Winters and Marshall did

not, an expert may have undermined the defense’s theory and simply bolstered Hayne’s

testimony.

       {¶30} Moreover, as recognized by Ohio courts, resolving this issue in Winters’s

favor “‘would be purely speculative as nothing in the record indicates what kind of

testimony an eyewitness identification expert could have provided.’” State v. Andrews,

12th Dist. Butler No. CA2009-02-052, 2010-Ohio-108, ¶ 37, quoting State v. Madrigal,

87 Ohio St.3d 378, 390, 721 N.E.2d 52 (2000).

       {¶31} Winters’s trial counsel’s decision to rely on cross-examination rather than

direct testimony of an expert witness was clearly a tactical decision and does not
constitute ineffective assistance of counsel. See State v. Day, 8th Dist. Cuyahoga No.

79368, 2002-Ohio-669 (failure to call “an expert in eyewitness identification was well

within the standard of reasonable trial tactics” and did not amount to ineffective

assistance of counsel).

       {¶32} The second assignment of error is overruled.

       2.   Telfaire Instruction

       {¶33} Winters next argues that his trial counsel was deficient in failing to request

the eyewitness instruction set forth in United States v. Telfaire, 469 F.2d 552

(D.C.Circ.1972), because identification was the central issue in the case.      According to

Winters, the identification testimony offered was conflicting and unreliable and therefore

the absence of a Telfaire instruction on eyewitness testimony was prejudicial.          We

disagree.

       {¶34} As this court has previously explained, the Telfaire instruction

       “instructs the jury to consider, inter alia, ‘the capacity and opportunity of
       the witness to observe the defendant; the identification being or not being
       the product of the witness’s own recollection, given the strength of the
       identification and the circumstances under which it was made; the
       inconsistent identifications that may have been made by the witness; and the
       general credibility of the witness.’”

Witherspoon, 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, at ¶ 23, citing State v.

Guster, 66 Ohio St.2d 266, 268, 421 N.E.2d 157 (1981), fn. 1.

       {¶35} Although the Ohio Supreme Court has approved the substance of the

Telfaire instruction, it did not mandate the use of a special instruction regarding
eyewitness identification, recognizing that the decision to give such an instruction was

within the sound discretion of the trial court. Guster at syllabus.

       {¶36} Here, the trial court did give a general instruction regarding the credibility of

the witnesses, specifically stating:

              Now, in determining the credibility of a particular witness you

       should consider the interest or bias the witness has in the outcome of the

       verdict, their appearance, manner, and demeanor while testifying before

       you.    You can consider their candor and frankness or lack thereof.

       Consider the consistency of the witnesses’ testimony with the other known

       facts in this case.   Consider the accuracy of their memory or inaccuracy,

       their intelligence or lack thereof, the reasonable or unreasonableness of

       their testimony. Consider the opportunity the witness had to see, hear or

       know the truth of the facts and circumstances concerning the things which

       they have testified to; and you may consider any other facts and

       circumstances surrounding the testimony which in your judgment would

       add or detract from the credibility and weight of that particular witness.

       {¶37} Contrary to Winters’s assertion, we do not agree that the eyewitness

testimony was “highly unreliable” or confusing, warranting a special instruction.      While

Marshall identified another person in the photo array, he indicated at that time that he was

not positive of the identification. He further explained at trial that, aside from being

nervous, he was focused on the gun and not the shooter’s face.        Marshall also had never
met Winters prior to the shooting. Conversely, Hayne knew Winters and positively

identified him as the shooter.    Hayne’s identification was further corroborated by Pierce,

who also witnessed the events. Based on the facts of this case, we find no fault in

Winters’s trial counsel’s decision not to seek a Telfaire instruction because the jury

instruction as given adequately informed the jury how to evaluate witness credibility.

See, e.g., Witherspoon, 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, ¶ 26; State v.

Collins, 4th Dist. Pickaway No. 13CA27, 2014-Ohio-4224, ¶ 43.

         {¶38} Moreover, Winters fails to demonstrate a reasonable probability that the

outcome of the proceedings would have been different if the special instruction was

given.    Accordingly, we cannot find that Winters’s trial counsel was ineffective in

failing to request the special instruction.

         {¶39} The third assignment of error is overruled.

         3. Castle Doctrine Instruction

         {¶40} In his fourth assignment of error, Winters argues that his trial counsel was

ineffective in failing to request a castle doctrine jury instruction.   But the castle doctrine

— an exception to the duty to retreat when using deadly force — is only applicable when

a defendant maintains that he acted in self-defense. See R.C. 2901.09(B). Winters’s

defense at trial centered on him not committing the act and the state prosecuting the

wrong person.       Thus, trial counsel appropriately refrained from requesting a jury

instruction that would have contradicted Winters’s defense. Notably, Winters does not

attack his trial counsel’s decision not to pursue a self-defense theory, which is usually
treated as a tactical decision.   Here, Winters’s trial counsel strategically chose to pursue

a defense of mistaken identity as opposed to self-defense.      And based on the evidence

presented at trial, that decision was sound and will not be second-guessed on appeal.

       {¶41} The fourth assignment of error is overruled.

       D. Court Costs

       {¶42} In his final assignment of error, Winters argues, and the state agrees, that the

trial court erred in imposing court costs in the journal entry after the court agreed not to

do so at the sentencing hearing.     We agree.    Because the trial court already considered

this issue and agreed not to impose court costs, we remand to the trial court for the limited

purpose of issuing a nunc pro tunc journal entry that comports with its pronouncement as

to costs that was made in open court.        See State v. Pipkins, 8th Dist. Cuyahoga No.

101624, 2015-Ohio-1823, ¶ 29 (remanding for trial court to issue a nunc pro tunc

correction of sentencing entry to reflect the waiver of court costs, consistent with the

pronouncement made at sentencing hearing).

       {¶43} The final assignment of error is sustained.

       {¶44} Judgment affirmed and case remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellee recover from appellant the 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.




MARY J. BOYLE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
SEAN         C.          GALLAGHER,                            J.,           CONCUR
