[Cite as State v. Riley, 2013-Ohio-1332.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, P.J.
                     Plaintiff-Appellee        :     Hon. William B. Hoffman, J.
                                               :     Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :     Case No. CT2012-0022
BLAKE A. RILEY                                 :
                                               :
                                               :
                     Defendant-Appellant       :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County Court
                                                   of Common Pleas, Case No. CR2011-0122


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            March 22, 2013



APPEARANCES:

For Appellant:                                       For Appellee:

ELIZABETH N. GABA                                    D. MICHAEL HADDOX
1231 East Broad Street                               MUSKINGUM CO. PROSECUTOR
Columbus, OH 43205                                   RON WELCH
                                                     27 N. 5th Street, Suite 201
                                                     Zanesville, OH 43702-0189
[Cite as State v. Riley, 2013-Ohio-1332.]


Delaney, P.J.

        {¶1} Appellant Blake A. Riley appeals from the March 16, 2012 judgment

entry of conviction and sentence of the Muskingum County Court of Common Pleas.

Appellee is the state of Ohio.

                                   FACTS AND PROCEDURAL HISTORY

        {¶2} Appellant is the former boyfriend of Ashley Orndorff, the granddaughter

of Larry and Becky Orndorff.                Appellant was aware the Orndorffs generously

supported Ashley.          They had cash on hand in their home which was available to

Ashley anytime. Appellant knew where the Orndorffs kept their cash and knew the

home was usually unlocked. He also knew the Orndorffs had many firearms in their

home.

        {¶3} This case arose in the late-night hours of December 12, 2008 when

intruders broke into the home of Larry and Becky Orndorff while the Orndorffs were

sleeping and stole cash and property.

        {¶4} The intruders decided to return in the early morning hours of December

13, 2008, and this time awakened Larry Orndorff.             Both Orndorffs were held at

gunpoint and their home was ransacked; they were forced to turn over cash, firearms,

medication, and other property. The Orndorffs believed there were two intruders in

their home during the robbery, and Becky Orndorff heard one place a phone call

instructing someone to come pick them up and to “pop the trunk.” Although most of

the telephones in the house had been disabled, Becky Orndorff was able to call 911 at

1:59 a.m.
Muskingum County, Case No. CT2012-0022                                                    3


       {¶5} The Orndorffs did not get a good look at the intruders. Becky was aware

that the one who led her to the garage at gunpoint had blue eyes and was taller than

her husband, and of slender build, but he was wearing a ski mask or other type of

head covering, black clothing, and gloves. Investigators were not able to find any

useful fingerprints and did find marks in dust that confirmed the intruders wore gloves

during the robbery.

       {¶6} The Muskingum County Sheriff’s Office immediately focused on the

phone call that had been placed during the robbery. They narrowed down the cell

phone towers that picked up calls from the Orndorffs’ residence. Next they narrowed

down calls within twenty minutes of Becky Orndorff’s 911 call, which were likely to be

the intruders calling their getaway driver. Eventually this investigative work led to a list

of six telephone numbers. Those telephone numbers led to interviews with several

individuals including appellant, Ryan Barlow, and Jamie Hutton, among others. All

denied their involvement in the home invasion.

       {¶7} The investigation yielded few leads until a woman named Keela Davis

came forward in 2010 and told her mother that appellant, Ryan Barlow, and Jamie

Hutton were the three who had perpetrated the Orndorff home invasion. A fourth

individual, Brittany Funk, was the getaway driver.         Law enforcement interviewed

Barlow, Hutton, and Funk and developed additional leads to confirm their suspicion of

appellant’s involvement.

       {¶8} Appellant was initially charged as a juvenile and bound over to the

Muskingum County Court of Common Pleas. After indictment and before the start of

trial, the State dismissed two aggravated robbery charges and amended others with
Muskingum County, Case No. CT2012-0022                                                     4


the result that appellant stood trial upon one count of aggravated burglary [R.C.

2911.11(A)(2)], theft of a firearm [R.C. 2913.02(A)(1)], theft in an amount greater than

$1000 and less than $7500 [R.C. 2913.02(A)(1)], aggravated burglary [R.C.

2911.11(A)(2)] with a firearm specification [R.C. 2941.145], two counts of kidnapping

[R.C. 2905.01(A)(2)] with a firearm specification [R.C. 2941.145], one count of theft of

firearms [R.C. 2913.02(A)(1)], and one count of theft in an amount greater than $7500

and less than $150,000 [R.C. 2913.02(A)(1)].

       {¶9} The State’s evidence at trial included the testimony of the Orndorffs and

the investigators.   Ryan Barlow and Jamie Hutton, appellant’s accomplices, also

testified, as did Brittany Funk. A former girlfriend of appellant’s testified he admitted

his involvement in the home invasion to her when she asked him about it, and said

Jamie Hutton forced him into it.

       {¶10} Appellant presented a number of alibi witnesses who claimed the night of

the robbery he was present at a performance by his sibling “Claudia” in Columbus,

Ohio. The State presented some evidence to indicate this show was performed a

different weekend than the one in question.

       {¶11} Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at

the close of appellee’s evidence and at the close of all of the evidence; the motions

were overruled. Appellant was found guilty as charged. The trial court determined

that a number of the counts and firearm specifications merged,1 and sentenced

appellant to an aggregate prison term of 23 years.



1
 Counts two and three (two counts of theft) merged with count one (aggravated burglary);
Counts seven and eight (theft) merged with count four (aggravated burglary); the firearm
specifications merge and appellant was sentenced on only one.
Muskingum County, Case No. CT2012-0022                                       5


      {¶12} Appellant now appeals from the judgment entry of his conviction and

sentence.

      {¶13} Appellant raises seven Assignments of Error:

      {¶14} “I.    THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS

INSTRUCTION TO THE JURY IN 1) FAILING TO GIVE THE JURY THE REQUIRED

CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF AN ALLEGED

ACCOMPLICE UNDER R.C. 2923.03(D) AS TO THE TESTIMONY OF RYAN

BARLOW AND JAMIE HUTTON; AND 2) FAILING TO IDENTIFY BRITTANY FUNK

AS A THIRD POTENTIAL ACCOMPLICE IN A CAUTIONARY INSTRUCTION.”

      {¶15} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES ON

COUNTS 4, 5, AND 6 OF THE INDICTMENT IN VIOLATION OF R.C. 2941.25—

ALLIED OFFENSES OF SIMILAR IMPORT—AND THE DOUBLE JEOPARDY

CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS.”

      {¶16} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE

PREJUDICE OF APPELLANT, BY CONVICTING APPELLANT, BECAUSE THIS

CONVICTION WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION.”

      {¶17} “IV.   THE COURT OF COMMON PLEAS DID NOT HAVE SUBJECT

MATTER JURISDICTION OVER THE CRIMINAL TRIAL BECAUSE BLAKE RILEY

WAS UNDER EIGHTEEN YEARS OLD AT THE TIME OF THE ALLEGED OFFENSE

AND WAS NOT PROPERLY BOUND OVER FROM THE JUVENILE COURT.”
Muskingum County, Case No. CT2012-0022                                                  6


      {¶18} “V. DEFENDANT’S JUVENILE COURT BINDOVER TO ADULT COURT

VIOLATED THE PRINCIPLES SET FORTH IN APPRENDI V. NEW JERSEY 530 U.S.

466 (2000), AND THUS VIOLATED HIS RIGHTS TO DUE PROCESS AND TO A

JURY TRIAL.”

      {¶19} “VI.   THE COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT FAILED TO RECORD ALL THE PROCEEDINGS IN THIS CASE.”

      {¶20} “VII. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE

OF COUNSEL DUE TO NUMEROUS ERRORS AND OMISSIONS WHICH

PREJUDICED APPELLANT’S TRIAL.”

                                            I.

      {¶21} Appellant argues in his first assignment of error the trial court erred in its

jury instructions with respect to accomplice testimony. We disagree.

      {¶22} Ohio Revised Code Section 2923.03(D) provides:

             If an alleged accomplice of the defendant testifies against the

             defendant in a case in which the defendant is charged with

             complicity in the commission of or an attempt to commit an

             offense, an attempt to commit an offense, or an offense, the court,

             when it charges the jury, shall state substantially the following:

             “The testimony of an accomplice does not become inadmissible

             because of his complicity, moral turpitude, or self-interest, but the

             admitted or claimed complicity of a witness may affect his

             credibility and make his testimony subject to grave suspicion, and

             require that it be weighed with great caution.
Muskingum County, Case No. CT2012-0022                                                     7


              “It is for you, as jurors, in the light of all the facts presented to you

              from the witness stand, to evaluate such testimony and to

              determine its quality and worth or its lack of quality and worth.”

       {¶23} In this case, no instruction on accomplice testimony was given.

Appellant’s trial counsel did not request an instruction nor object to the instructions as

given, and appellant concedes he has therefore waived all but plain error. Pursuant to

Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” The rule places several

limitations on a reviewing court’s determination to correct an error despite the absence

of timely objection at trial: (1) “there must be an error, i.e., a deviation from a legal

rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious’ defect

in the trial proceedings,” and (3) the error must have affected “substantial rights” such

that “the trial court’s error must have affected the outcome of the trial.” State v. Dunn,

5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, citing State v. Morales, 10 Dist. Nos.

03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted). The decision to

correct a plain error is discretionary and should be made “with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus.

       {¶24} In determining whether the trial court committed plain error by failing to

give the jury an accomplice instruction under R.C. 2923.03, an appellate court

generally examines several specific factors. See, State v. Simpson, 9th Dist. No.

25363, 2011–Ohio–2771, ¶ 19. In State v. Davis, the Ninth District Court of Appeals
Muskingum County, Case No. CT2012-0022                                                   8


articulated a number of factors to review when the trial court fails to give an instruction

on accomplice testimony in the absence of a request to do so.

              When determining whether the trial court committed plain

              error by failing to comply with R.C. 2923.03(D), this Court

              examines several factors. We look to the record to

              determine      the   scope    of   cross-examination      of   the

              accomplice that was permitted by the trial court.* * *

              Further, we review whether the details of the accomplice's

              plea agreement were presented to the jury and whether the

              jury instructions that were actually given contain much of

              the substance of the instructions mandated by R.C.

              2923.03(D). Finally, we examine whether the accomplice's

              testimony was favorable to the defendant, justifying

              defense counsel's failure to request the required instruction

              as a tactical decision. * * *. [Internal citations omitted].

              State v. Davis, Ninth Dist. No. 22395, 2005-Ohio-4083, ¶

              16.

       {¶25} We find no plain error with regard to the testimony of Barlow and Hutton.

The scope of cross examination of both was extensive and without constraint by the

trial court. The jury was told the lengths of their sentences due to their involvement in

this crime. The jury instructions, as in Davis, contained only the standard language

about witness credibility.    Barlow and Hutton’s testimony was also unfavorable to

appellant: both put him squarely in the midst of both aggravated robberies, suggesting
Muskingum County, Case No. CT2012-0022                                             9


the locale, in the residence, holding a shotgun to the Orndorffs and carrying out

firearms and other property. However, we find this case distinguishable from Davis,

supra, and more akin to State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087,

817N.E.2d 845, ¶ 83, because the evidence of appellant’s involvement in the home

invasion did not rest solely upon the accomplices’ testimony.     Other evidence of

appellant’s involvement existed and therefore the trial court’s failure to give the

accomplice jury instruction was not plain error.

      {¶26} With regard to the testimony of Brittany Funk, we find no plain error.

Appellant has not explained how Brittany Funk was an accomplice.       She was not

charged as a result of her involvement. Generally, “[a]t minimum, an accomplice must

be someone who has been indicted for the crime of complicity.” State v. Smith, 9th

Dist. No. 25650, 2012–Ohio–794, ¶ 22. Otherwise, an accomplice instruction may

become necessary only in certain “rare circumstances” where a person might have

been an accomplice, but was never indicted, such as a situation in which he or she

received immunity in exchange for his or her testimony. Id. Funk was never charged

as an accomplice and received no special treatment for her cooperation and

testimony. Funk testified she was unaware of any plans to rob the Orndorff home; and

denied any involvement in the crime. Appellant has not shown Funk was actually an

accomplice or that her status was such that this was one of the “rare circumstances”

where an accomplice instruction was warranted. See Id.

      {¶27} Funk was not indicted for complicity, nor was any evidence presented to

show that she received any type of favorable treatment in exchange for testifying

against appellant. Therefore, the trial court was not required to give the cautionary
Muskingum County, Case No. CT2012-0022                                                10

instruction to the jury. State v. Howard, 5th Dist. No. 06CAA100075, 2007-Ohio-3669,

¶ 60.

        {¶28} The trial court did not commit plain error in failing to give an accomplice

instruction and appellant’s first assignment of error is overruled.

                                                II.

        {¶29} In his second assignment of error, appellant argues his convictions for

kidnapping and the second count of aggravated burglary should have merged for

purposes of sentencing because they are allied offenses of similar import.           We

disagree.

        {¶30} With respect to victims Larry and Becky Orndorff, appellant was indicted

upon, convicted of, and sentenced upon one count each of kidnapping pursuant to

R.C. 2905.01(A)(2). Appellant argues the trial court should have merged the second

count of aggravated burglary pursuant to R.C. 2911.11(A)(2) (Count Four) for

purposes of sentencing.

        {¶31} R.C. 2941.25 states as follows:

              (A) Where the same conduct by defendant can be

              construed to constitute two or more allied offenses of

              similar import, the indictment or information may contain

              counts for all such offenses, but the defendant may be

              convicted of only one.

              (B) Where the defendant's conduct constitutes two or more

              offenses of dissimilar import, or where his conduct results in

              two or more offenses of the same or similar kind committed
Muskingum County, Case No. CT2012-0022                                                 11


             separately or with a separate animus as to each, the

             indictment or information may contain counts for all such

             offenses, and the defendant may be convicted of all of

             them.

       {¶32} In State v. Johnson, the Ohio Supreme Court modified the test for

determining whether offenses are allied offenses of similar import. 128 Ohio St.3d

1405, 2010–Ohio–6314. The Court directed us to look at the elements of the offenses

in question and determine whether or not it is possible to commit one offense and

commit the other with the same conduct. If the answer to such question is in the

affirmative, the court must then determine whether or not the offenses were committed

by the same conduct. If the answer to the above two questions is yes, then the

offenses are allied offenses of similar import and will be merged. If, however, the court

determines that commission of one offense will never result in the commission of the

other, or if there is a separate animus for each offense, then the offenses will not

merge according to Johnson, supra.

       {¶33} Count Four, aggravated burglary pursuant to R.C. 2911.11(A)(2), states

in pertinent part, “No 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

has a deadly weapon or dangerous ordnance on or about the offender's person or

under the offender's control.” Appellant was also convicted of one count of kidnapping
Muskingum County, Case No. CT2012-0022                                                   12


pursuant to R.C. 2905.01(A)(2), which states, “No person, by force, threat, or

deception * * * shall remove another from the place where the other person is found or

restrain the liberty of the other person, for any of the following purposes: [t]o facilitate

the commission of any felony or flight thereafter.”

       {¶34} Under the facts of this case, the aggravated burglary was complete when

appellant entered the house for the second time. Upon awakening the Orndorffs and

subjecting them to prolonged restraint, and forcing Becky Orndorff into the garage at

gunpoint, the offense of kidnapping was committed with a separate animus.              The

aggravated burglary offense is not an allied offense of kidnapping under these

circumstances.

       {¶35} Appellant’s second assignment of error is overruled.

                                                III.

       {¶36} In his third assignment of error, appellant argues summarily his

convictions are against the manifest weight and sufficiency of the evidence.            We

disagree.

       {¶37} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The

standard of review for a challenge to the sufficiency of the evidence is set forth in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the

syllabus, in which the Ohio Supreme Court held, “An appellate court’s function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would
Muskingum County, Case No. CT2012-0022                                                13


convince the average mind of the defendant’s guilt beyond a reasonable doubt. 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.”

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

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra,

78 Ohio St.3d at 387. 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.

      {¶39} Appellant was convicted upon one count of aggravated burglary, one

count of theft of firearms, and one count of theft in an amount greater than $1000 and

less than $7500 related to the first entrance into the home on December 12, 2008. He

was convicted of one count of aggravated burglary, one count of theft of firearms, one

count of theft in an amount greater than $7500 and less than $150,000 and two counts

of kidnapping for the return to the home in the early morning hours of December 13,

2008 and encounter with the Orndorffs.

      {¶40} Appellee’s evidence consisted of the testimony of the Orndorffs, who

were not able to specifically identify appellant but did provide a link to him because he

dated their granddaughter, had been in their home, and was aware they had ready
Muskingum County, Case No. CT2012-0022                                                 14


cash and firearms. Hutton, Barlow, and Funk detailed the events the night of the

home invasion and appellant’s involvement therein. DNA consistent with appellant

was found on a metal bar under the deck of the residence, found with a radio removed

from the Orndorffs’ daughter’s car. Appellant’s girlfriend testified about his admissions

to her. The cell phone evidence implicated Barlow and Hutton, which led to appellant.

       {¶41} Appellant does not indicate which element of which offense appellee

failed to present sufficient evidence of. Nor does he point to any evidence in the

record that the jury lost its way. Appellant’s convictions are not against the manifest

weight or sufficiency of the evidence and appellant’s third assignment of error is

overruled.

                                               IV.

       {¶42} In his fourth assignment of error, appellant argues the common pleas

court lacked jurisdiction to indict, convict, and sentence him. We disagree.

       {¶43} It is undisputed appellant was age 17 at the time of the offense.

Pursuant to R.C. 2152.10(A)(2)(b), appellant was subject to mandatory transfer. “A

child who is alleged to be a delinquent child is eligible for mandatory transfer and shall

be transferred as provided in section 2152.12 of the Revised Code in any of the

following circumstances: The child is charged with a category two offense, other than

a violation of section 2905.01 of the Revised Code, the child was sixteen years of age

or older at the time of the commission of the act charged, and either or both of the

following apply: The child is alleged to have had a firearm on or about the child's

person or under the child's control while committing the act charged and to have

displayed the firearm, brandished the firearm, indicated possession of the firearm, or
Muskingum County, Case No. CT2012-0022                                                  15


used the firearm to facilitate the commission of the act charged.”        Appellant was

charged with a number of Category Two offenses pursuant to R.C. 2152.02(CC)(1),

including aggravated burglary and kidnapping.

       {¶44} Appellant argues, though, the juvenile court failed to consider

amenability factors and failed to order a mental health evaluation.          We find no

authority for such requirement for mandatory transfers, nor does appellant offer any.

       {¶45} Appellant also argues the juvenile complaint was improper because it

does not state where the offense took place. It is well established, though, that failure

to object or otherwise raise venue issues in a juvenile complaint waives the matter on

appeal. See, e.g., State v. Loucks, 28 Ohio App.2d 77, 82, 274 N.E.2d 773 (4th

Dist.1971).

       {¶46} Appellant’s fourth assignment of error is overruled.

                                               V.

       {¶47} In his fifth assignment of error, appellant argues Ohio’s juvenile transfer

statute violates the Sixth Amendment right to trial by jury as set forth in Apprendi v.

New Jersey, 530 U.S. 466 (2000). We disagree.

       {¶48} In Apprendi v. New Jersey, the United State Supreme Court determined

that other than the fact of a prior conviction, any fact which increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury and

proven beyond a reasonable doubt. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000). Appellant apparently argues Ohio’s juvenile bindover procedure violates

Apprendi because juvenile bindover proceedings should be held to a reasonable-

doubt standard.
Muskingum County, Case No. CT2012-0022                                                16


       {¶49} We reject appellant’s argument as a misunderstanding of Ohio criminal

procedure.    The juvenile bindover procedure is analogous to the adult preliminary

hearing: both evaluate probable cause, neither is a determination of a defendant’s

guilty beyond a reasonable doubt. Appellee points out that Juv.R. 27(A) and R.C.

2151.35(A) require the juvenile division to determine cases without a jury, but this was

a case of mandatory transfer to the (adult) Court of Common Pleas and the matter

was, in fact, tried to a jury.

       {¶50} Appellant’s fifth assignment of error is overruled.

                                              VI.

       {¶51} In his sixth assignment of error, appellant argues his conviction must be

reversed because bench conferences and other colloquy between counsel and the

court was not recorded. We disagree.

       {¶52} Appellant failed to object or ask that sidebar discussions be recorded

and therefore waived the issue. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-

5084, 854 N.E.2d 1038, ¶ 134. We will not reverse where an appellant failed to object

and fails to demonstrate material prejudice.         Id.   Nothing in the record supports

appellant’s speculation the sidebar discussions dealt with matters relevant to appellate

review. See, id.

       {¶53} Appellant’s sixth assignment of error is overruled.

                                              VII.

       {¶54} In his seventh assignment of error, appellant asserts he received

ineffective assistance of trial counsel. We disagree.
Muskingum County, Case No. CT2012-0022                                               17


       {¶55} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing

such claims, “a court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158 (1955).

       {¶56} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶57} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       {¶58} Appellant summarily asserts trial counsel made the following strategic

errors: he failed to object to use of photographs of a shoe and to investigate shoe

sizes of witnesses; he didn’t effectively cross-examine the accomplices on their plea

agreements or seek appropriate accomplice jury instructions, and finally he stipulated

to the testimony of a forensic witness.
Muskingum County, Case No. CT2012-0022                                                 18


       {¶59} Each of the decisions cited by appellant, with the exception of trial

counsel’s failure to seek accomplice jury instructions, constitutes a matter of trial

strategy, for which we generally afford counsel a broad range of deference. Tactical

or strategic trial decisions, even if ultimately unsuccessful, do not generally constitute

ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965

(1995).

       {¶60} Counsel’s failure to seek an accomplice instruction was arguably

ineffective under the first prong of Strickland, supra, but appellant has not even

attempted to make an argument under the second prong, and therefore fails to show

the result of the proceeding would have been different had an accomplice instruction

been given. As we have stated infra, appellant’s convictions were not against the

manifest weight of the evidence. We are unable to find appellant suffered actual

prejudice as a result of counsel’s failure to seek an accomplice jury instruction.

       {¶61} Appellant’s seventh assignment of error is therefore overruled.
Muskingum County, Case No. CT2012-0022                                        19


      {¶62} Having overruled appellant’s seven assignments of error, the judgment

of the Muskingum County Court of Common Pleas is therefore affirmed.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. WILLIAM B. HOFFMAN



                                     HON. SHEILA G. FARMER




PAD:kgb
[Cite as State v. Riley, 2013-Ohio-1332.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                     Plaintiff-Appellee        :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
BLAKE A. RILEY                                 :
                                               :
                                               :   Case No. CT2012-0022
                     Defendant-Appellant       :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                            HON. PATRICIA A. DELANEY



                                            HON. WILLIAM B. HOFFMAN



                                            HON. SHEILA G. FARMER
