[Cite as State v. Dodson, 2019-Ohio-2084.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                 No. 17AP-541
v.                                                :          (C.P.C. No. 16CR-2539)

Devin J. Dodson,                                 :        (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                         D E C I S I O N

                                      Rendered on May 28, 2019


                 On brief:     Ron O'Brien, Prosecuting Attorney, and
                 Kimberly M. Bond, for appellee.

                 On brief: Jeremy A. Roth, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
        {¶ 1} Defendant-appellant, Devin J. Dodson, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of having a weapon while under
disability, a felony of the third degree. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On May 10, 2016, appellant was indicted on one count of having a weapon
while under disability, in violation of R.C. 2923.13. The events giving rise to the indictment
occurred on January 27, 2016, when police officers executed a search warrant for a
residence located at 4671 East Main Street, apartment 22.
        {¶ 3} Officers became interested in the apartment after they witnessed appellant
making suspected drug sales out of a black Chevrolet Camaro in parking lots located in the
No. 17AP-541                                                                                2


4600 block of East Main Street. Officers determined the Camaro was typically parked at
an apartment building located at 4671 East Main Street. The Camaro was registered to
appellant's brother, Ryan Dodson.
       {¶ 4} On January 25, 2016, Sergeant Dennis Allen of the Whitehall Police
Department entered the apartment building and "noticed a strong smell of burning
marijuana * * * coming from apartment #22." (State's Ex. F-1.) Allen heard a male voice
inside apartment 22 say "I'm putting on my shoes, I got you bro," and "[i]f you want more
I can get what you want" and then observed Dodson exit apartment 22. (State's Ex. F-1.)
The apartment management informed Allen that apartment 22 was leased to Kelsey
Arnold.
       {¶ 5} On January 27, 2016, officers were maintaining surveillance on the Camaro
in the apartment building parking lot. When appellant exited the apartment building and
approached the Camaro, officers detained him and placed him in handcuffs. Appellant
presented "himself as Devin Dodson" and provided officers with his identification. (May 9,
2017 Tr. at 73.) Officers found a mason jar containing marijuana in appellant's coat pocket.
Inside the Camaro, officers found empty mason jars, "a plastic kitchen heat seal device in
the trunk," and a "storage locker key * * * on the floorboard of the car." (May 9, 2017 Tr. at
25.)
       {¶ 6} Appellant informed the officers that "he had come from Apartment 22" and
that "nobody else was inside" the apartment. (May 9, 2017 Tr. at 27, 28.) Appellant stated
"the apartment wasn't his, that it was Kelsey's," to which Allen replied "Kelsey Arnold, is
that your girlfriend? And [appellant] replied yes." (May 9, 2017 Tr. at 21, 27.) Appellant
had keys to apartment 22 on the same key ring as the Camaro keys. Officers used the keys
obtained from appellant to enter the apartment.
       {¶ 7} Inside the apartment, officers discovered two firearms, marijuana, hashish, a
digital scale, and single serving narcotics bags. The firearms were located inside and behind
a large leather sofa located in the living room. Allen explained that "[i]n the middle of that
sofa was an armrest. The armrest opens. And there's a compartment for storage there.
Next to that armrest, there are two cup holders." (May 9, 2017 Tr. at 41.) A credit card
bearing appellant's name "was found in one of the cup holders on that sofa." (May 9, 2017
Tr. at 41.) Inside the closed armrest storage compartment, officers found a 40-caliber
No. 17AP-541                                                                                  3


Taurus pistol. Behind the sofa, officers found an AK-47 semiautomatic rifle. A firearm
examiner from the Bureau of Criminal Identification determined that both firearms were
operable.
       {¶ 8} Officers discovered a traffic citation and complaint from December 2015 in
"the name of Devin Dodson" on the dining room table. (May 9, 2017 Tr. at 36.) On the
refrigerator, officers discovered a piece of paper titled "Bill List." (State's Ex. G.) The list
had columns titled "[w]ho I owe," "[d]ay [d]ue," and "[a]mounts." (State's Ex. G.) The
"[w]ho I owe" column listed Uncle Bob's Storage, rent, car payment, Time Warner, T-
Mobile, Boost Mobile, electric, and gas. In the bedroom closet, officers discovered two Time
Warner Cable bills, both addressed to "Devin Dodson, 4671 East Main Street, Apartment
No. 22." (May 9, 2018 Tr. at 37.) Officers also found "two cellular phones" in appellant's
possession. (May 9, 2017 Tr. at 40.) Appellant had a business card for Uncle Bob's Storage
in his wallet.
       {¶ 9} On investigation, officers discovered appellant was leasing storage unit No.
256 from Uncle Bob's Storage. After obtaining a search warrant, officers discovered Blazer
9mm ammunition, a carrying box for a Glock pistol, a bulletproof vest, and $6,000 cash in
the storage unit.
       {¶ 10} At the conclusion of trial, the jury returned a verdict finding appellant guilty
of the crime charged in the indictment. The court sentenced appellant to 36 months of
community control under intensive supervision.
II. ASSIGNMENTS OF ERROR
       {¶ 11} Appellant appeals, assigning the following errors for our review:
                 1. The trial court erred when it entered judgment against
                 Appellant when there was not sufficient evidence to support the
                 guilty verdict and conviction of Appellant, in violation of his
                 due process rights under the Ohio and United States
                 Constitutions.

                 2. The trial court erred when it entered judgment against
                 Appellant when the guilty verdict returned by the jury was
                 against the manifest weight of the evidence in violation of his
                 due process rights under the United States and Ohio
                 Constitutions.
No. 17AP-541                                                                                    4


               3. Appellant was deprived of a fair and impartial trial due to
               ineffective assistance of counsel by counsel's failure to object to
               the court's dismissal for cause of Juror [C].

III. DISCUSSION
       A. First Assignment of Error
       {¶ 12} Appellant's first assignment of error asserts that the jury's verdict was not
supported by sufficient evidence.
       {¶ 13} "Sufficiency of the evidence is a legal standard that tests whether the evidence
is legally adequate to support a verdict." State v. Kurtz, 10th Dist. No. 17AP-382, 2018-
Ohio-3942, ¶ 15, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the
evidence is legally sufficient to support a verdict is a question of law, not fact. Kurtz at ¶ 15.
In determining whether the evidence is legally sufficient to support a conviction, " '[t]he
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.' " State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-
5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
"A verdict will not be disturbed unless, after viewing the evidence in a light most favorable
to the prosecution, it is apparent that reasonable minds could not reach the conclusion
reached by the trier of fact." State v. Patterson, 10th Dist. No. 15AP-1117, 2016-Ohio-7130,
¶ 32, citing State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
       {¶ 14} "In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency
of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that
"in a sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state's witnesses
testified truthfully and determines if that testimony satisfies each element of the crime").
"Further, 'the testimony of one witness, if believed by the jury, is enough to support a
conviction.' " Patterson at ¶ 33, quoting State v. Strong, 10th Dist. No. 09AP-874, 2011-
Ohio-1024, ¶ 42. See also State v. Clark, 10th Dist. No. 15AP-926, 2016-Ohio-5493, ¶ 25.
No. 17AP-541                                                                                 5


       {¶ 15} R.C. 2923.13 defines the crime of having a weapon while under disability in
relevant part:
                 (A) Unless relieved from disability under operation of law or
                 legal process, no person shall knowingly acquire, have, carry,
                 or use any firearm or dangerous ordnance, if any of the
                 following apply:

                 ***

                 (3) The person is under indictment for or has been convicted of
                 any felony offense involving the illegal possession, use, sale,
                 administration, distribution, or trafficking in any drug of
                 abuse.

       {¶ 16} At trial, the parties stipulated appellant had a previous conviction for a felony
drug abuse offense. Appellant presents no argument regarding his prior conviction; rather,
appellant contends plaintiff-appellee, State of Ohio, failed to present sufficient evidence
demonstrating that he knowingly possessed the firearms located inside the apartment.
       {¶ 17} In order to "have" a firearm under R.C. 2923.13, one must either actually or
constructively possess the firearm. State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-
5162, ¶ 121. "A person has actual possession of an item when it is within his immediate
physical control." State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 27 (10th
Dist.). " 'Constructive possession exists when an individual exercises dominion and control
over an object, even though that object may not be within his immediate physical
possession.' " State v. Dorsey, 10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 32, quoting
State v. Wolery, 46 Ohio St.2d 316, 329 (1976).
       {¶ 18} "Dominion and control over an object 'may be proven by circumstantial
evidence alone.' " State v. Walker, 10th Dist. No. 14AP-905, 2016-Ohio-3185, ¶ 71, quoting
State v. Trembly, 137 Ohio App.3d 134, 141 (8th Dist.2000). "[T]he surrounding facts and
circumstances, including defendant's actions, constitute evidence from which the trier of
fact can infer whether the defendant had constructive possession." Pilgrim at ¶ 27.
       {¶ 19} As the firearms were not found in appellant's immediate physical possession,
the issue resolves to whether the evidence sufficiently demonstrates appellant's
constructive possession of the firearms. Appellant informed the officers on January 27,
2016 that he had just come from apartment 22 and that no one else was inside the
No. 17AP-541                                                                                 6


apartment. Appellant had a key to the apartment on his key ring. Appellant admitted that
Kelsey Arnold, the named tenant on the lease for the apartment, was his girlfriend.
However, the majority of the clothes found in the apartment were male clothing. Allen
noted that officers discovered only "two pieces of [female] clothing" in the entire apartment.
(May 9, 2017 Tr. at 81.) Officers also discovered a shoe box with "the name Dodson on it"
in the apartment. (May 9, 2017 Tr. at 61.) Appellant's mail, traffic citation, credit card, and
list of bills were discovered in various locations throughout the apartment. Such evidence
demonstrated that appellant was residing in the apartment and that he had control over
the objects within the apartment. See State v. Divens, 10th Dist. No. 12AP-326, 2013-Ohio-
671, ¶ 17; State v. Pitts, 4th Dist. No. 99 CA 2675 (Nov. 6, 2000).
       {¶ 20} However, " 'the mere fact that property is located within premises under one's
control does not, of itself, constitute constructive possession.' " Divens at ¶ 10, quoting
State v. Hankerson, 70 Ohio St.2d 87, 91 (1982). To establish constructive possession, "[i]t
must also be shown that the person was conscious of the presence of the object."
Hankerson at 91. Appellant asserts because the firearms were concealed from plain view,
the evidence was insufficient to establish he was consciously aware of their presence.
       {¶ 21} Possession of a firearm "may be inferred when the defendant has exercised
dominion and control over the area in which the firearm is found." State v. Williams, 10th
Dist. No. 97APA02-255 (Sept. 30, 1997) (finding the evidence sufficient to allow the jury to
infer the appellant possessed the firearm, "since mail bearing" the appellant's name "was
found under the plate of crack cocaine and next to the handgun," and the gun was found
next to appellant's "drivers' license and his mail"). See also Dorsey at ¶ 33 (concluding
"appellant had the ability to easily exercise dominion and control over the firearm" located
in the vehicle he was driving, as the firearm was located "in between the console and the
side of the passenger seat inside a piece of carpet that came up the side of the console" and
"in close proximity to the gear shift").
       {¶ 22} Officers discovered appellant's credit card in the cup holder on the sofa. The
credit card was located "within inches" of the pistol in the armrest compartment. (May 9,
2017 Tr. at 42.) The AK-47 was behind the sofa. The presence of appellant's credit card on
the sofa was circumstantial evidence demonstrating that appellant exercised dominion and
control over the area where the firearms were found. Moreover, although the firearms were
No. 17AP-541                                                                                   7


not in plain view, they were readily accessible to appellant while seated on the couch in the
apartment. See State v. English, 1st Dist. No. C-080872, 2010-Ohio-1759, ¶ 33 (finding the
evidence demonstrated English's constructive possession of the firearm, as the "revolver
was located in a room containing English's personal belongings, including drugs that he
had exercised control over, and the revolver's location was such that English had immediate
access to it"); State v. Hooks, 12th Dist. No. CA2000-01-006 (Sept. 18, 2000) (observing,
even when drugs are hidden in a residence, "it may be inferred that the defendant was able
to exercise dominion and control over the drugs when they are readily accessible to the
defendant").
       {¶ 23} The evidence also demonstrated appellant's knowledge of other items hidden
in the apartment.      During their search, officers discovered "a hard brown colored
substance" which was "kind of hidden away" in the kitchen pantry. (May 9, 2017 Tr. at 39,
40.) As the officers were inspecting the substance, they mentioned between themselves
that it appeared to be "tar heroin, to which [appellant] replied, that's not heroin, that's dab."
(May 9, 2017 Tr. at 40.) Allen explained that dab is "just a hard form of marijuana." (May 9,
2017 Tr. at 39.) As appellant was aware of the contents of the dark brown substance hidden
in the kitchen pantry, a jury could reasonably infer that appellant was aware of other items
concealed throughout the apartment, including the firearms.
       {¶ 24} Appellant contends the evidence was insufficient to demonstrate his
possession of the firearms because the state did not produce fingerprint or DNA evidence
linking him to the firearms. Although officers did take a DNA sample from appellant, Allen
explained the state did not "do any swabs" or "take any type of identification or anything
off the * * * two weapons." (May 9, 2017 Tr. at 81.)
       {¶ 25} The jury heard the evidence demonstrating that appellee did not test the
firearms for fingerprints or DNA material and could consider the absence of such forensic
evidence in weighing the credibility of the witnesses. See State v. Sieng, 10th Dist. No.
18AP-39, 2018-Ohio-5103, ¶ 52 (stating the state's failure "to produce fingerprint or DNA
evidence connecting appellant to the gun" resolved to "an issue of [witness] credibility").
Arguments concerning witness credibility are matters relevant to the weight, rather than
the sufficiency, of the evidence. State v. Cervantes, 10th Dist. No. 18AP-505, 2019-Ohio-
1373, ¶ 33.
No. 17AP-541                                                                                   8


       {¶ 26} Viewing the evidence in a light most favorable to appellee, a rational trier of
fact could have found that appellant possessed the firearms beyond a reasonable doubt.
The surrounding facts and circumstances demonstrated appellant's mail and personal
effects were present throughout the apartment, appellant had knowledge of items hidden
within the apartment, and appellant's credit card was on the sofa where the firearms were
located.   Accordingly, appellee presented sufficient circumstantial evidence which, if
believed, demonstrated appellant had exercised dominion and control over the firearms.
As appellant's previous felony drug abuse conviction was a qualifying disability, the
evidence was legally sufficient to support appellant's conviction for having a weapon while
under disability.
       {¶ 27} Based on the foregoing, appellant's first assignment of error is overruled.
       B. Second Assignment of Error
       {¶ 28} Appellant's second assignment of error asserts the jury's verdict was against
the manifest weight of the evidence.
       {¶ 29} "Even though supported by sufficient evidence, a conviction may still be
reversed as being against the manifest weight of the evidence." State v. McCombs, 10th
Dist. No. 15AP-245, 2015-Ohio-3848, ¶ 3, citing Thompkins, 78 Ohio St.3d at 387. "While
sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally
sufficient to support the verdict as a matter of law, the criminal manifest weight of the
evidence standard addresses the evidence's effect of inducing belief." State v. Cassell, 10th
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 38.
       {¶ 30} "When presented with a manifest-weight challenge, an appellate court may
not merely substitute its view for that of the trier of fact but 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 trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered." Patterson, 2016-Ohio-7130, at ¶ 34, citing Thompkins at 387, citing
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). An appellate court should reserve
reversal of a conviction as being against the manifest weight of the evidence for only the
most " 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting Martin at 175.
No. 17AP-541                                                                                 9


       {¶ 31} In conducting a manifest weight of the evidence review, we may consider the
credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953,
¶ 6. However, in conducting such review, "we are guided by the presumption that the jury,
or the trial court in a bench trial, 'is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.' " Id., quoting Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 80 (1984).       "Accordingly, we afford great deference to the jury's
determination of witness credibility." State v. Albert, 10th Dist. No 14AP-30, 2015-Ohio-
249, ¶ 14. "Mere disagreement over the credibility of witnesses is not a sufficient reason to
reverse a judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770,
2014-Ohio-2501, ¶ 25, discretionary appeal not allowed, 140 Ohio St.3d 1455, 2014-Ohio-
4414, citing State v. G.G., 10th Dist. No. 12AP-188, 2012-Ohio-5902, ¶ 7.
       {¶ 32} Appellant contends the weight of the evidence demonstrated he did not
reside at the apartment or have any knowledge of the firearms. Specifically, appellant states
the following evidence demonstrated his lack of connection to the apartment where the
firearms were found: the addresses listed on the traffic citation and storage unit lease
agreement and the 9mm ammunition found in the storage unit.
       {¶ 33} The traffic citation listed appellant's address as 1309 McKahan Avenue,
Columbus, Ohio. The storage unit lease agreement listed appellant's address as 5843
McKahan Court, Columbus, Ohio. However, the traffic citation was physically present in
the apartment where the firearms were located, and Uncle Bob's Storage, where appellant
had a storage unit, was identified on the bill list hanging on the refrigerator in the
apartment. Additionally, appellant signed the lease agreement for the storage unit on
June 24, 2014, one and one-half year before the events at issue. Allen explained to the jury
that an officer issuing a traffic citation will typically write the address appearing on the
driver's license on the citation, noting that such address may differ from the driver's current
address. The jury was free to weigh the evidence of the addresses listed on the traffic
citation and the storage unit rental agreement against the other evidence demonstrating
that appellant lived at the apartment, including the two Time Warner Cable bills addressed
to appellant at the 4671 East Main Street, apartment 22 address.
No. 17AP-541                                                                                  10


       {¶ 34} Appellant notes the 9mm ammunition found in the storage unit "would not
work in either of the firearms located in the apartment." (Appellant's Brief at 15.) However,
the firearms in the apartment were each discovered with their corresponding caliber of
ammunition. The Taurus pistol was "[l]oaded and chambered" when officers discovered it
in the sofa. (May 9, 2017 Tr. at 56.) The AK-47 was discovered with a "magazine" and "live
ammunition." (May 9, 2017 Tr. at 43.) The firearm examiner stated the Taurus pistol was
submitted for testing with "10 40 Smith & Wesson cartridges" and that the AK-47 was
submitted with "28 7.62 by 39 cartridges[,] * * * the size of the cartridges that this particular
rifle [was] designed to fire." (May 9, 2017 Tr. at 108, 109.)
       {¶ 35} After reviewing the entire record, we find nothing to indicate the jury clearly
lost its way or that any miscarriage of justice resulted as to require a new trial. The record
reflects substantial, credible evidence from which the trier of fact could have reasonably
concluded that all elements of the charged crime had been proven beyond a reasonable
doubt, including that appellant constructively possessed the firearms present in the
apartment. Accordingly, appellant's conviction for having a weapon while under disability
was supported by the manifest weight of the evidence.
       {¶ 36} Based on the foregoing, appellant's second assignment of error is overruled.
       C. Third Assignment of Error
       {¶ 37} Appellant's third assignment of error asserts that his trial counsel rendered
constitutionally ineffective assistance by failing to object to the court's dismissal of Juror C.
       {¶ 38} "The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the effective assistance of counsel." State v. Belmonte, 10th Dist. No.
10AP-373, 2011-Ohio-1334, ¶ 8, citing McMann v. Richardson, 397 U.S. 759, 771 (1970).
Courts employ a two-step process in determining whether the right to effective assistance
of counsel has been violated. Belmonte at ¶ 8, citing Strickland v. Washington, 466 U.S.
668, 687 (1984). The defendant must first demonstrate that counsel's performance was
deficient. This requires showing counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed by the Sixth Amendment. Belmonte at ¶ 8. The
defendant must then demonstrate that the deficient performance prejudiced the defense.
This requires showing counsel's errors were so serious as to deprive the defendant of a fair
No. 17AP-541                                                                                   11


trial, a trial whose result is reliable. Id., citing Strickland at 687. The failure to make either
showing defeats a claim of ineffectiveness of trial counsel. Strickland at 697.
       {¶ 39} "An attorney properly licensed in the state of Ohio is presumed competent."
Belmonte at ¶ 9, citing State v. Lott, 51 Ohio St.3d 160, 174 (1990). The defendant bears
the burden of proof and must overcome the strong presumption that counsel's performance
was adequate or that counsel's action might be considered sound trial strategy. Belmonte
at ¶ 9, citing State v. Smith, 17 Ohio St.3d 98, 100 (1985). In demonstrating prejudice, the
defendant must prove there exists a reasonable probability that, but for counsel's errors,
the result of the trial would have been different. Belmonte at ¶ 9, citing State v. Bradley,
42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
       {¶ 40} After deliberations began, the jury informed the court that it was unable to
come to a unanimous decision. The court provided the jury with a supplemental jury
instruction pursuant to State v. Howard, 42 Ohio St.3d 18 (1989). After providing the
Howard charge, the court noted that, as it was "getting late in the day," the jury might want
to "consider whether or not [they were] at a good breaking point for today," and they could
"restart tomorrow." (May 10, 2017 Tr. at 61.) The jury, however, resumed its deliberations.
       {¶ 41} Sometime thereafter, the court received a note from Juror C stating she
needed to leave to take a friend to the hospital. Juror C explained to the court that her
friend had previously "hurt themselves" and that she did not know if her friend would "let
themselves be taken to the hospital" by the emergency squad. (May 10, 2017 Tr. at 63.)
Appellee asked Juror C if the issue regarding her friend was separate from anything going
on in the jury room, and Juror C responded "[y]eah. * * * Things are fine going on in the
jury room." (May 10, 2017 Tr. at 64.) The court and defense counsel both noted that Juror
C appeared sincere in her request to leave. The court dismissed Juror C for cause, replaced
her with an alternate juror, and instructed the jury to begin its deliberations anew. Neither
party objected to the court's decision to dismiss Juror C.
       {¶ 42} Appellant states "it was error to simply not permit the jury to retire for the
day and allow Juror [C] to deal with the personal emergency involving her friend and return
in the morning to resume deliberations." (Appellant's Brief at 17-18.) However, the court
informed the jury they could break for the day when the court issued the Howard charge.
No. 17AP-541                                                                                 12


The jury chose to continue its deliberations. The record does not demonstrate any deficient
performance from counsel in this respect.
       {¶ 43} The "failure to make objections does not constitute ineffective assistance of
counsel per se, as that failure may be justified as a tactical decision." (Emphasis sic.) State
v. Gumm, 73 Ohio St.3d 413, 428 (1995). Alternate jurors "have the same qualifications,"
are subject "to the same examination and challenges, take the same oath, and have the same
functions, powers, facilities, and privileges as the regular jurors." Crim.R. 24(G)(1). Thus,
the alternate juror was as capable as Juror C to consider the evidence presented at trial. See
State v. Hutton, 53 Ohio St.3d 36, 45 (1990). Both the court and counsel noted Juror C's
apparent sincerity, and there is no indication that an objection to the removal of Juror C
would have been successful. The record fails to demonstrate any deficient performance by
counsel in failing to object to the dismissal of Juror C.
       {¶ 44} Moreover, appellant cannot establish that, but for the removal of Juror C, the
verdict would have been different. " 'As a general rule, no one – including the judge
presiding at a trial – has a "right to know" how a jury, or an individual juror, has deliberated
or how a decision was reached by a jury or juror.' " State v. Robb, 88 Ohio St.3d 59, 81
(2000), quoting United States v. Thomas, 116 F.3d 606, 618 (2nd Cir.1997). Appellant's
contention that the outcome of the trial would have been different had Juror C remained
on the jury is purely speculative. See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, ¶ 314 (noting the appellant's "assertion that the juror was a holdout [was] purely
speculative, so he [could not] establish prejudice").
       {¶ 45} Appellant fails to establish that he was deprived of the effective assistance of
counsel. Based on the foregoing, appellant's third assignment of error is overruled.
IV. CONCLUSION
       {¶ 46} Having overruled appellant's first, second, and third assignments of error, we
affirm the judgment of the Franklin County Court of Common Pleas.
                                                                          Judgment affirmed.

                    KLATT, P.J., SADLER, and BRUNNER, JJ., concur.
                                   ________________
