[Cite as State v. Mitchell, 2018-Ohio-4032.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                             WASHINGTON COUNTY

STATE OF OHIO,                 :
                               :    Case No. 17CA30
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
TYLER PURVIS-MITCHELL,         :
                               :
    Defendant-Appellant.       :    Released: 09/28/18
_____________________________________________________________
                         APPEARANCES:

Darren L. Meade, Parks and Meade, LLC, Columbus, Ohio for Appellant.

Tyler Purvis-Mitchell, Pro Se Appellant.

Kevin W. Rings, Washington County Prosecuting Attorney, and Alison L.
Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Tyler Purvis-Mitchell appeals his conviction from the

Washington County Court of Common Pleas for one count of felonious

assault, F.C. 2903.11(A)(1), a felony of the second degree. For the reasons

which will follow, we overrule the two assignments of error and affirm the

judgment of the trial court.
Washington App. No. 17CA30                                                    2

                                    FACTS

      {¶2} Appellant was indicted by the Washington County Grand Jury on

one count of felonious assault for an altercation which occurred in the

Washington County Jail on November 11, 2016 involving Appellant and

another inmate, Robert Rhodes. As a result of the altercation, Rhodes

permanently lost vision in his left eye.

      {¶3} On February 24, 2017, Appellant pleaded not guilty to the single

count and initially appeared with court-appointed counsel. However, on

March 14, 2017, Attorney George Cosenza filed a notice of appearance on

Appellant’s behalf as well as a motion for discovery. Appellant proceeded

to jury trial on July 17, 2017.

      {¶4} At trial, both Appellant and Robert Rhodes testified as to the

facts and circumstances surrounding the incident. The State also presented

testimony from several employees of the Washington County Jail, and the

physician who treated Rhodes after the altercation. Rhodes’ testimony will

be set forth more fully below. However, the essence of his testimony was

that he was not at fault in starting the altercation. He also denied any use of

racial epithets against Appellant prior to or during the incident.

      {¶5} Marry Perry testified she is the control room operator for the

Washington County Jail. Her job duties entail monitoring the 62 security
Washington App. No. 17CA30                                                                             3

cameras. Around 11:20 p.m. on November 11, 2016, there was a

disturbance in the men’s area, C-Dorm. When she saw a fight ensue, she

notified other corrections officers to respond. As the video of the incident

played, Perry testified that the recording represented a fair and accurate copy

of what happened.1 The trial transcript indicates the video has no audio.

        {¶6} On cross-examination, Ms. Perry testified the security cameras

are constantly recording. The DVR computer system itself determines how

far anyone can go back in time to capture events and has nothing to do with

the jail personnel’s capabilities. Perry knew nothing about the nature of any

video five hours prior to the incident.

        {¶7} Margaret King, another corrections officer at the Washington

County Jail, testified she responded to the altercation scene. After Rhodes

was escorted out of the area, King and another officer ordered the other

inmates to line up and show their hands so they could identify the other

participant. No one, including Appellant, offered that information. King

observed Appellant with redness and swelling on his knuckles on both

hands. She identified and authenticated State’s Exhibit F as Appellant’s

hands.




1
 Perry testified the only editing which had been done to the recording was when it showed the camera
zooming or changing direction as she watched the incident unfold.
Washington App. No. 17CA30                                                     4

      {¶8} Tyler Stephens, also a deputy sheriff corrections officer at the

Washington County Jail, testified he responded to the incident. When he

arrived in C-Dorm, Rhodes was lying by a table with some blood coming

out of his face. Stephens assisted in removing Rhodes from the area and

cleaning the blood on his face and arm. Stephens was ordered to take

photographs of the area. Stephens identified States’ Exhibits B, C, D, and E

which, respectively, depicted Rhodes’ face, eye, and blood where Rhodes’

was lying.

      {¶9} Lieutenant Jeff Young of the Washington County Sheriff’s

Office also responded to the incident. He escorted Rhodes to medical and

later went to the control room to watch the video for the purpose of finding

out who else participated in the altercation. Young testified that the security

camera system records continuously.

      {¶10} On cross examination, Lieutenant Young testified he

automatically made the video of the incident, pursuant to protocol for such

occurrences. He testified he started the video a minute or so prior to the

incident. Young also testified to his knowledge, no video recording was

made of the time period prior to the copy he made. The video is

automatically preserved for approximately 30-40 days.
Washington App. No. 17CA30                                                    5

      {¶11} On redirect, Young testified he would not have been able to

retrieve the video 3-4 months after the incident. He also testified he had

never received a complaint from Appellant with regard to alleged threats or

verbal assaults from Rhodes.

      {¶12} Dr. Ralph Lim, an ophthalmologist at Marietta Memorial

Hospital, testified as to Rhodes’ eye injury. When he encountered Rhodes at

the hospital ER, he testified the area around Rhodes’ left eye was swollen

shut, with clear fluid and blood seeping from it. Dr. Lim described the eye

at that time as grossly deformed, like “stepping on a grape.” He advised

Rhodes that he would do his best to salvage the eye but the prognosis to

keep his vision was “probably next to nothing.” Dr. Lim performed surgery

to repair the globe, and Rhodes was eventually transferred to Ohio State to

see a retina specialist. Dr. Lim opined that Rhodes’ left eye injury was

consistent with a traumatic series of blows to his eye.

      {¶13} Very briefly summarizing Appellant’s testimony, he countered

that Rhodes had taunted him 45 minutes to an hour prior to the incident

using racial epithets which were not captured on the video shown in the

State’s case. He also testified Rhodes threatened to “knock him out” and

rape him. Appellant used force because he feared Rhodes’ threats.
Washington App. No. 17CA30                                                                                    6

         {¶14} The trial court instructed the jury as to self-defense; however,

Appellant was convicted of the sole count. He was later sentenced to a

three-year term of imprisonment to be served consecutively to “any other

federal sentence being served.”

         {¶15} This timely appeal followed. On January 18, 2018, appellate

counsel filed a brief setting forth one assignment of error. On February 8,

2018, Appellant pro se filed a supplemental merit brief setting forth an

additional assignment of error.2 The State filed its response to both

assignments of error. Additional facts are set forth below, where pertinent.

                                 ASSIGNMENTS OF ERROR

         I.       “THE JURY’S REJECTION OF APPELLANT’S SELF-
                  DEFENSE CLAIM IS AGAINST THE MANIFEST
                  WEIGHT OF THE EVIDENCE BECAUSE THE
                  EVIDENCE IS INSUFFICIENT TO PROVE THAT
                  MR. PURVIS-MITCHELL WAS AT FAULT IN
                  CREATING THE SITUATION, AND THAT HE DID
                  NOT HAVE REASONABLE GROUNDS TO BELIEVE
                  THAT HE WAS IN IMMINENT DANGER OF
                  BODILY HARM.

         II.      MR. PURVIS-MITCHELL’S SIXTH AMENDMENT
                  RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
                  DURING THE PRETRIAL AND TRIAL STAGE WAS
                  VIOLATED AS COUNSEL FAILED TO DO A
                  PROPER PRETRIAL INVESTIGATION INTO THE
                  LAW, FACTS, AND CIRCUMSTANCES OF THE
                  CASE, AND THEN CALL THE APPROPRIATE
2
  Appellant’s pro se brief is captioned “Supplement Merit Brief” [sic]. Although it contains one sentence
referencing it as a “post-conviction motion,” nothing else suggests it should be considered as anything but
as part of a direct appeal.
Washington App. No. 17CA30                                                        7

              DEFENSE WITNESSES COUPLED WITH
              COUNSEL’S FAILURE TO FILE THE APPROPRIATE
              MERIT-WORTHY MOTIONS.”

                       ASSIGNMENT OF ERROR ONE

       {¶16} In the brief filed by appellate defense counsel, it is argued that

Appellant’s conviction for felonious assault is erroneous because the jury’s

rejection of his self-defense claim is against the manifest weight of the

evidence. Counsel asserts that the evidence at trial supported a finding that

Appellant was not at fault in creating the situation and that Appellant had a

reasonable belief he was facing imminent bodily harm. For the reasons that

follow, we disagree.

                           STANDARD OF REVIEW

        {¶17} When an appellate court considers a claim that a conviction is

against the manifest weight of the evidence, the court must dutifully

examine the entire record, weigh the evidence, and consider the credibility

of witnesses. The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve. State v.

Waller, 4th Dist. Adams No. 17CA1044, 2018-Ohio-2014, at ¶ 17; State v.

Clark, 4th Dist. Highland No. 14CA20, 2015–Ohio–5003, ¶ 7, citing State v.

Wickersham, 4th Dist. Meigs No 13CA10, 2015–Ohio–2756, ¶ 25; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th
Washington App. No. 17CA30                                                       8

Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. “In determining whether

the judgment below is manifestly against the weight of the evidence, every

reasonable intendment must be made in favor of the judgment and the

finding of facts. * * * If the evidence is susceptible of more than one

construction, the reviewing court is bound to give it that interpretation which

is consistent with the verdict and judgment, most favorable to sustaining the

verdict and judgment.” Seasons Coal Co. Inc. v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,

Appellate Review, Section 603, 91–192 (1978). An appellate court will

generally leave the issues of evidence weight and credibility to the fact

finder, as long as a rational basis exists in the record for its decision. Clark at

¶ 8, quoting State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–

Ohio–1282, ¶ 24. Thus, once the reviewing court finishes its examination,

the court may reverse the judgment of conviction only if it appears that the

fact-finder, when resolving the conflicts in evidence, “ ‘clearly lost its way

and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’ ” Wickersham, supra, at ¶ 9, quoting

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State

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

Finally, a reviewing court should find a conviction against the manifest
Washington App. No. 17CA30                                                      9

weight of the evidence only in the “ ‘exceptional case in which the evidence

weighs heavily against the conviction.’ ” Id., quoting Martin, 20 Ohio

App.3d at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995

(2000).

                             LEGAL ANALYSIS

      1. Does the evidence support a finding that Appellant had a
         reasonable belief of imminent bodily harm?

      2. Does the evidence support a finding that Appellant was at
         fault in creating the situation between the victim and
         himself?

      {¶18} Because Appellant’s arguments are interrelated, we consider

them jointly. First, counsel argues the trial court erred when it rejected

Appellant’s claim that he had a reasonable belief that he was in danger of

bodily harm. Counsel cites Appellant’s testimony that 45 minutes prior to

the incident captured on the jail security video, another incident occurred.

This alleged incident was not captured on video and not available to be

shown to the jury at trial. As to this first alleged incident, Appellant testified

that Robert Rhodes entered the recreation room and engaged Appellant with

threats of physical and sexual harm coupled with racist remarks. Counsel

asserts that Appellant’s testimony as to these facts demonstrates that

Appellant formed a sincere belief that Rhodes intended to cause him great
Washington App. No. 17CA30                                                                               10

bodily harm. Counsel’s second argument is that the trial court also erred

when it implicitly found Appellant was at fault in creating the situation.

         {¶19} The State’s response to both arguments is that Appellant’s

claims are supported only by his self-serving testimony. The State asserts

that the video evidence, demonstrating Appellant as the first aggressor,

speaks for itself. The State argues Appellant’s credibility is “lacking”

because he never advised investigating officers that he was involved in the

altercation or that he was defending himself.

         {¶20} We begin by setting forth the pertinent trial testimony. Robert

Rhodes testified he is 39 years old, divorced, with 3 children. He is a union

pipefitter and had previously worked as a police officer. Rhodes estimated

he is 5 feet 10 or 11 inches tall and weighs about 187 pounds.

         {¶21} On November 11, 2016, Rhodes was incarcerated at the

Washington County Jail in C-Dorm, serving a 40-day jail sentence.3 On that

evening, Fort Frye High School was playing in a regional championship

game. Rhodes’ son, in high school at the time, apparently played on the

football team. Rhodes wanted to watch the WTAP television station for

“Football Frenzy” after the regular 11:00 p.m. news to see football game

highlights and scores.

3
  It is unclear whether Rhodes was serving time for a probation violation and/or protection order violations
involving his ex-wife and/or children.
Washington App. No. 17CA30                                                       11

      {¶22} Rhodes testified the television in C-Dorm was mounted “high

enough” on the wall that it could be viewed for those standing or sitting. At

this point of the trial, the State played the jail security video and Rhodes’

narrated the events captured on it, as there is no audio. The trial transcript

reveals Rhodes testified that the video showed him coming downstairs and

standing in front of the television in C-Dorm. Rhodes did not change the

channel. Rhodes testified other people, including Appellant, were sitting in

the background watching WTAP. Rhodes was not blocking their ability to

see the television.

      {¶23} Rhodes further testified Appellant arose from his seat,

approached him, and turned off the television. Rhodes turned it back on,

and the two went back and forth several times. Rhodes testified as follows:

      Rhodes:         He says that I’m not allowed to watch the TV
                      because I used to be a law enforcement officer and
                      he’s a federal inmate, so he gets to pick who
                      watches the TV and what they watch, because he’s
                      doing the most time. * * *

      State:          Did you ever tell him that he wasn’t allowed to
                      control the TV because he’s black?

      Rhodes:         No, sir. State of Ohio owns that TV.

      State:          How many times you guys play with the remote
                      back and forth there?

      Rhodes:         Seven or eight, possibly.
Washington App. No. 17CA30                                              12

     State:     And is- - is he changing the channel or just turning
                it on and off?

     Rhodes:    At this point, there’s a remote on the wall, and he’s
                pretty much just got his hand there, just hitting
                whatever, so it’s going on, off, channels going up,
                down. It’s- -
     ***
     State:     What’s happening now?

     Rhodes:    At this point, Mr. Purvis-Mitchell is calling me a
                pig, calling me a po-po (phonetic), calling me a
                cop. Telling me when he gets out of jail, he’s
                going to rape and kill my 10 year old daughter.
                He’s going to rape my 17-year-old son. He’s
                going to kill me, because I used to be a cop. Cops
                aren’t allowed to watch his TV. * * *

     State:     What happened there?

     Rhodes:    He shoved my hand away and changed the channel
                on the TV and told me I wasn’t watching TV. * * *

     State:     What happened there? Please pause. What did you
                see happen there?

     Rhodes:    As soon as I let my hand down off the remote and
                backed away from the TV and took my eyes off of
                Mr. Purvis-Mitchell, he hit me in the face.* * *

     State:     Was that the first punch that was thrown?

     Rhodes:    Yes, sir.

     State:     Please continue. What’s going on now?

     Rhodes:    At this point, he’s telling me that he’s going to
                whip my ass, he’s going to kill me.

     State:     Stop. You saw that fight start in front of the TV.
Washington App. No. 17CA30                                                  13

                   What happened then?

      Rhodes:      At one point, I kind of squared up to kind of
                   protect my face * * * I’m not going fight anybody
                   and catch another charge in the county jail, but at
                   the same time, I’m going to try to protect myself a
                   little bit. So I square up and he comes at me, just
                   throwing punches.

      State:       How many times do you remember being struck?

      Rhodes:      At- - - at my best recollection, Kevin, maybe three,
                   maybe four.

      State:       Watching this, it’s clear you were struck more
                   times than that, weren’t you?

      Rhodes:      Yes, sir.

      State:       Did you ever, even once, strike the Defendant?

      Rhodes:      No.

      State:       Did you ever swing at him and miss?

      Rhodes:      I’m sure I probably may have.

      State:       Try to push him away from you?

      Rhodes:      Absolutely.

      {¶24} Rhodes concluded his direct testimony by denying he

threatened any physical or sexual harm or violence to Appellant prior to the

incident.

      {¶25} On cross-examination, Rhodes acknowledged as part of his

Ohio police officer training, he receiving training in firearms and defensive
Washington App. No. 17CA30                                                  14

tactics, such as how to subdue an uncooperative suspect. Rhodes denied any

contact with Appellant prior to the incident, save for “casual chit chat.” The

video of the incident was played again during Rhodes’ cross-examination,

which continued as follows:

      Counsel:     All right. Now at some point, you decide to come
                   down.

      Rhodes:      Yes, sir.

      Counsel:     Had you had any kind of discussion, or verbal
                   argument, or anything with Tyler, prior to you
                   coming down those steps?

      Rhodes:      Oh yeah, he told me I wasn’t going to be able to
                   watch the WTAP news or the Football Frenzy.

      Counsel:     So you did have an argument before you came
                   down these steps?

      Rhodes:      No, it wasn’t an argument.

      Counsel:     Is that- - is that when you told- - well, during this
                   conversation, did you tell him that- - that blacks
                   weren’t permitted to control what was watched on
                   that pod?

      Rhodes:       Absolutely not. (Laughing.)

      Counsel:     And you never called him a nigger?

      Rhodes:      No, sir, I did not.

      Counsel:     You never said you would fuck him up his
                   nigger’s ass?

      Rhodes:      No, sir, I did not. (Laughing.)
Washington App. No. 17CA30                                               15

      Counsel:     You never said anything like that?
      Rhodes:      No, sir.

      {¶26} Defense counsel continued, inquiring about a recorded

statement Rhodes gave at the Washington County Sheriff’s Department a

couple of months after the incident.

      Counsel:     What officer took the statement from you?

      Rhodes:      I believe it was Cory Huffer, was his name.

      Counsel:       Okay. Did you tell Officer Huffer in that
      statement that if you saw Mr. - - if you saw Tyler again- - and
      I’ll quote - - ‘I’ll call him a nigger right to his face’?

      Rhodes:      Absolutely.

      Counsel:     You said that?

      Rhodes:      Yes, sir.

      Counsel:     You want to go ahead and call him a nigger now?

      Rhodes:      No, sir, because he’s not threatening to kill my
                   daughter or my son no.

      Counsel:     But you did make that statement?

      Rhodes:      Yea, after he threatened to kill my daughter and
                   rape my daughter and rape my son and kill my son,
                   yes, I did make that statement.

      Counsel:     When you gave this statement to the police, by that
                   time, it was all over, wasn’t it?

      Rhodes:      Yes, sir. * * *
Washington App. No. 17CA30                                                16

      {¶27} On redirect, Rhodes testified again that he never threw a punch

at Appellant, but he did try to push him away. Rhodes testified:

      State:       Who came up to the TV when you were there
                   watching?

      Rhodes:      The Defendant, Tyler Purvis-Mitchell.

      State:       And the at one point, he walked away and came
                   back a second time.

      Rhodes:      Yes, sir.

      State:       So the first time you were struck you believe it was
                   on the back of the head, on the right side of your
                   head, is that right?

      Rhodes:      Yea, I know it was. I had a knot there for about a
                   week.

      State:       Okay, and after that, you simply walked back to
                   the TV and began watching the TV again?

      Rhodes:      Yes, sir, I really wanted to see how my son did in
                   that football game.

      State:       And the Defendant came up to you a third time,
                   did he not?

      Rhodes:      Yes, sir. * * *

      State:       The first time where you kind of stumbled back
                   and you spun around, you said you were hit in the
                   back right side of the back of your head. Was that
                   the first blow that was struck?
      Rhodes:      Yes, sir. The first one that was- - the first time I
                   got hit was in the back of the head with my back
                   towards the Defendant.
      State:       Okay, and that was the first blow that was struck in
Washington App. No. 17CA30                                                   17

                    this whole incident?

      Rhodes:       Yes, sir.

      State:        Okay. You hadn’t hit him before that.

      Rhodes:       No sir. * * *”

      {¶28} The defense later presented a differing version of facts as to

how the incident started. However, in the beginning of his direct testimony,

Appellant testified he is 23 years old and from Albany, New York.

Appellant explained he was being held in the Washington County Jail on

November 11, 2016 on federal charges from West Virginia. On the incident

date, he had already pleaded guilty and was awaiting sentencing in the

Washington County Jail. Appellant testified he is 6 feet 1 inch tall and that

he had “put on some weight” since November 2016.

      {¶29} Appellant testified before the incident with Rhodes, the two had

never talked. There was “word around the dorm” that Rhodes was an ex-

cop. Appellant testified he did not know anything about Rhodes’ family,

specifically, that he had any children.

      {¶30} Appellant testified that approximately 45 minutes to an hour

before the portion of the video that was shown to the jury, he was seated,

watching 20/20, when Mr. Rhodes yelled from upstairs to change the

television. Appellant testified he did not respond verbally, but looked at
Washington App. No. 17CA30                                                  18

Rhodes as Rhodes made his way downstairs to the television. Rhodes

changed the TV station and Appellant changed it back.

      {¶31} Appellant testified Rhodes then went back upstairs and on his

way, was calling Appellant “black” and “nigger” and saying, “I don’t care

how black you are, you’re not going to be watching TV.” Appellant testified

Rhodes went “on and on,” and at one point, turned and looked at Appellant

and explicitly threatened: “I would knock you out, drag you in the back

room and fuck you in your nigger ass.” Appellant testified he did not

respond, but he was uncomfortable and embarrassed. There were only 4

other African Americans in C-Dorm. Appellant walked away from the

television for about 40-45 minutes. Rhodes never came downstairs to

change the television channel.

      {¶32} Appellant testified he was never made aware that Rhodes

wanted to watch the TV to see Football Frenzy and watch his son playing

football. He testified Rhodes was very aggressive, disrespectful, and

uncivilized. It seemed like Rhodes wanted to bully him about the TV. He

testified if Rhodes had explained to him why he wanted to watch the TV,

there would not have been a problem.

      {¶33} Appellant acknowledged he did not report the problem to the

corrections officers because he just took Rhodes’ words as idle threats.
Washington App. No. 17CA30                                                     19

Also, Rhodes was upstairs and he was downstairs. Appellant did talk to

another inmate, Deandre White, who agreed that Rhodes was “trying to get

me upset.” Appellant “cooled off” and went back to watch TV.

      {¶34} Ironically for both participants in the altercation, Appellant

testified he was watching “Anger Management” when Rhodes saw him,

came downstairs again, and yelled: “I told you, black mother fuckers ain’t

going to be watching the TV.” After saying this, Rhodes stood in front of

the TV. Appellant testified he stood and turned up the volume on the

television. He was tired of being bullied, being called names, and he didn’t

want the channel changed. Then Rhodes went over to the television and

changed the channel. Appellant tried to change it back, but Rhodes’ hand

was against the wall, trying to block the remote control.

      {¶35} Appellant testified there was conversation going on, although

the video did not also have audio. Appellant told Rhodes: I’m tired of you

trying to bully me at the TV.” Rhodes replied “I don’t give a fuck what

you’re watching. I’m going to watch the TV now.” As Rhodes had his hand

over the remote, Appellant testified he backed up to the television to reach

the side panel to change it from the side. At this point, Rhodes reached out,

pushed Appellant and grabbed his shirt. Appellant testified he pushed
Washington App. No. 17CA30                                                   20

Rhodes away and told him “Don’t touch me.” Appellant tried to change the

channel back.

       {¶36} Appellant testified Rhodes moved towards him again, stating:

“I think he—he pushes me or he touches me again.” At this point, Appellant

swung at him and missed. Appellant testified he swung because he began to

get scared. Rhodes had threatened to rape him and kill him. Appellant

testified:

       “And I’ll be honest, I’m no angel. I’ve been to prison. And
       I’ve seen people get sexually assaulted. Prison is a violent
       place, and when someone threatens to rape me, I take that very
       seriously.”

       {¶37} Appellant reiterated that Rhodes pushed him first and started

the altercation. The fact that Rhodes was an ex-cop and had trained in

combat concerned him. Although he was “a little bigger” than Rhodes, he

was afraid Rhodes would have the advantage on him if he didn’t defend

himself. Appellant thought about pushing the intercom on the wall to get

assistance from the officers, but he was afraid to turn his back on Rhodes

who had just threatened him.

       {¶38} Appellant testified when Rhodes grabbed his shirt, while

Appellant was striking him, he fell with Rhodes. When they were on the

floor, Appellant kept hitting Rhodes because he didn’t want him to get up

and attack him. Appellant was trying to get out of the situation safely.
Washington App. No. 17CA30                                                      21

      {¶39} Appellant testified he did not intend to hurt Rhodes seriously,

and was sorry about Rhodes’ eye. However, he felt afraid due to Rhodes’

aggressiveness and threats. Appellant explained he felt use of force was the

only way to protect himself.

      {¶40} On cross-examination, Appellant testified the federal charge he

was being held on was conspiracy to provide a false statement during the

purchase of a firearm. He admitted he never reported Rhodes’ alleged

threats and use of racial epithets to anyone at the jail until after the incident.

Appellant even admitted that Rhodes did nothing to prevent Appellant from

watching the television and Rhodes did not change the channel. However,

Appellant opined that the investigation was “one-sided,” and maintained that

there was an incident between the two about an hour before when Rhodes

called him racial epithets and threatened him, which was not captured on the

video shown to the jury. Appellant also admitted Rhodes never went to the

remote until he did, never stopped him from watching television, and never

swung at him.

      {¶41} Appellant testified he thought he injured Rhodes’ eye: “It just,

the noise sounded like something was wrong, and that’s when I got up- - and

I got up and I walked away.” When questioned why he did not initially

admit his involvement to the investigating officers, Appellant testified: “I
Washington App. No. 17CA30                                                    22

didn’t say anything. I‘m going to let them do their job. They’re going to

find out anyway.”

      {¶42} The trial court gave the following charge to the jury before it

began its deliberations:

      “The Defendant, Tyler Purvis- Mitchell, is asserting an
      affirmative defense known as self-defense. The burden of
      proving an affirmative defense by the greater weight of the
      evidence, is on the Defendant. The Defendant claims to have
      acted in self-defense. To establish that he was justified in
      using force not likely to cause death or great bodily harm, the
      defendant must prove by the greater weight of the evidence,
      that he was not at fault in creating the situation giving rise to
      and he had reasonable grounds to believe and an honest belief,
      even if mistaken, that he was in imminent danger of bodily
      harm.

      ***

      Words alone do not justify the use of force. Result [sic] to such
      force is not justified by abusive language, verbal threats, or
      words, no matter how provocative.

      In deciding whether Defendant had reasonable grounds to
      believe, and an honest belief that he was in eminent [sic] danger
      of bodily harm, you must put yourself in the position of the
      Defendant with his characteristics, his knowledge or lack of
      knowledge, and under the circumstances and conditions that
      surrounded him at the time. You must consider the conduct of
      Robert Rhodes and decide whether his acts and words caused
      the Defendant reasonably and honestly to believe that he was
      about to receive bodily harm.”

      {¶43} In this case, Appellant contends that the trial court’s rejection of

his self-defense explanation of his violent actions is against the manifest
Washington App. No. 17CA30                                                    23

weight of the evidence. Essentially, Appellant argues that the jury should

have believed his version of events. The weight to be afforded to the

evidence and the credibility of testimony are issues to be determined by the

trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d 1000

(1995), citing State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993).

As stated above, the fact finder “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.” Seasons

Coal Co., 10 Ohio St.3d 77 at 80, 461 N.E.2d 1273. Furthermore, a jury is

free to believe all, some, or none of a particular witness's testimony. State v.

Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 25. State v.

Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d 1096 (4th Dist.1992).

      {¶44} In this case, both the State and defense counsel vigorously

examined Appellant and Rhodes. It is obvious that the jury did not find

Appellant’s testimony regarding the events which transpired between

Rhodes and himself justified his use of force. The jurors were instructed

that Appellant must prove he was not at fault in creating the situation which

occurred. They were also instructed to put themselves in the position of

Appellant, with his characteristics, knowledge or lack of knowledge, and

under the circumstances at the time of the incident. And, the jurors were
Washington App. No. 17CA30                                                    24

instructed to consider the conduct of Rhodes, and decide whether his acts

and words caused Appellant to reasonably believe he was about to receive

bodily harm.

      {¶45} While the jury may have not have thought it beyond the realm

of possibility that a prior incident occurred between the two, and that Rhodes

may have indeed verbally threatened Appellant and used offensive racial

epithets, the jury did not conclude Appellant had a reasonable belief of

imminent bodily harm. Possibly this was because of the disparity in the

ages, height and weight of the two inmates which was testified to by both

witnesses and observable on the jail security video shown at trial. In

particular, the jury apparently did not find credible Appellant’s testimony

that he feared for his safety and was too scared to quit hitting and walk

away, when questioned as to why he struck Rhodes three additional times

when Rhodes was lying on the floor bleeding.

      {¶46} The jury also apparently concluded Appellant was at fault in

creating the violent situation between Rhodes and himself. The testimony

set forth above demonstrates that Rhodes was standing and watching the

television mounted on the wall. Though Rhodes was not blocking it,

Appellant chose to stand and approach him at the television. Rhodes

testified Appellant turned the television off. Appellant testified Rhodes
Washington App. No. 17CA30                                                                               25

changed the channel. While the parties’ testimony contrasted on that point,

this back and forth exchange over the television channel sparked the

remaining events.

         {¶47} More importantly, the jury viewed the video showing the

physical altercation. We pause to acknowledge that this court has been

unable to view the jail security video played at trial.4 The trial transcript,

however, reflects that the video was played during Rhodes’, Mary Perry’s,

and Appellant’s testimonies. Perry’s testimony authenticated the video.

Appellant briefly objected to the relevance of showing the video during

Perry’s testimony, but the objection was overruled.

         {¶48} At the close of the State’s case in chief, the video disk was

“stipulated into evidence by the parties” and admitted without objection.

When portions of the appellate record are not supplied to the court or

unavailable for review, we presume the regularity of the trial court

proceedings. See State v. Seymour, 4th Dist. Ross No.17CA3601, 2018-

Ohio-1404, at ¶ 17; State v. Bailey, 4th Dist. Scioto No. 09CA3287, 2010-

Ohio-2239, at ¶ 60; State v. McMullen, 1st Dist. Hamilton No. C-960088,



4
  This court was unable to download and view the jail security video. When the DVD containing the video
was inserted into the court’s media device, the file was listed as Rhodes v. Purvis Mitchell, 11Nov16, and it
was listed as an N3R file. According to https://security.panasonic.com, “Since ‘N3R’is Panasonic dedicated
format, general media player doesn’t support this format. However, once you convert data from n3r to mp4
* * * you can play in general media player.” See enfaq.security.panasonic.com, accessed August 20, 2018.
Washington App. No. 17CA30                                                                             26

1997 WL 5183, (Jan. 8, 1997), at *2.5 Based on the testimony

authenticating the video and the stipulation regarding the video’s

admissibility contained in the trial transcript, we will presume the security

video depicting the events which transpired between Rhodes and Appellant

at the Washington County Jail, which we are unable to view, was viewed by

the jury.

         {¶49} Apparently, this video convinced the jury that Appellant was

the physical aggressor. And, even assuming Rhodes’ was verbally

aggressive, using racial epithets 45 minutes before the disagreement at the

television set, the jury was instructed that no matter how provocative, use of

force is not justified. The jury was in the better position to ascertain the

credibility of the witnesses and to weigh their testimonies accordingly, and

we will not substitute our judgment for that of the jury. We find the

evidence supports the jury’s implicit finding that Appellant’s self-defense

claim was not plausible. For the foregoing reasons, we find Appellant’s

conviction is not against the manifest weight of the evidence. We hereby

overrule the first assignment of error and affirm the judgment of the trial

court.
5
  In McMullen, the appellant claimed that two of his exhibits were not given to the jury, however, the
record revealed that state's counsel and appellant's counsel both confirmed for the trial judge that all
exhibits that had been admitted into evidence were present when the judge gave the bailiff the exhibits.
Under those circumstances, the court presumed the regularity in the proceedings and presume that the jury
did in fact receive the exhibits.) Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384
(1980).
Washington App. No. 17CA30                                                      27

                      ASSIGNMENT OF ERROR TWO

      {¶50} In Appellant’s pro se “Supplement Merit Brief” [sic], he argues

his Sixth and Fourteenth Amendment rights to the effective assistance of

counsel were violated. First, Appellant argues there was no proper pretrial

investigation into the facts and circumstances surrounding the altercation.

Second, Appellant argues trial counsel failed to call witnesses necessary to

his defense. Finally, Appellant asserts that his trial counsel failed to file

appropriate and merit-worthy motions. For the reasons which follow, we

disagree with Appellant’s arguments.

                          STANDARD OF REVIEW

      {¶51} The Sixth Amendment to the United States Constitution and

Article I, Section 10 of the Ohio Constitution provide that defendants in all

criminal proceedings shall have the assistance of counsel for their defense.

The United States Supreme Court has generally interpreted this provision to

mean a criminal defendant is entitled to the “reasonably effective assistance”

of counsel. State v. Anderson, 4th Dist. Lawrence No. 17CA6, 2018-Ohio-

2013, at ¶ 22, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984); accord Hinton v. Alabama, 571 U.S. 263, 134 S.Ct. 1081, 1087-

1088 (2014) (explaining that the Sixth Amendment right to counsel means
Washington App. No. 17CA30                                                      28

“that defendants are entitled to be represented by an attorney who meets at

least a minimal standard of competence”).

      {¶52} To establish constitutionally ineffective assistance of counsel, a

defendant must show (1) that his counsel's performance was deficient and

(2) that the deficient performance prejudiced the defense and deprived the

defendant of a fair trial. E.g., Strickland, 466 U.S. at 687, 104 S.Ct. 2052;

State v. Obermiller, 147 Ohio St.3d 175, 63 N.E.3d 93, 2016-Ohio-1594,

¶ 83; State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865,

¶ 85. “Failure to establish either element is fatal to the claim.” State v.

Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if

one element is dispositive, a court need not analyze both. State v. Madrigal,

87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant's

failure to satisfy one of the elements “negates a court's need to consider the

other”).

      {¶53} The deficient performance part of an ineffectiveness claim “is

necessarily linked to the practice and expectations of the legal community:

‘The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.’ ” Anderson at ¶ 23,

quoting Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473 (2010),

quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052; accord Hinton, 134
Washington App. No. 17CA30                                                      29

S.Ct. at 1088. “Prevailing professional norms dictate that with regard to

decisions pertaining to legal proceedings, ‘a lawyer must have “full authority

to manage the conduct of the trial.” ’ ” Obermiller at ¶ 85, quoting State v.

Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24,

quoting Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646 (1988).

Furthermore, “ ‘[i]n any case presenting an ineffectiveness claim, “the

performance inquiry must be whether counsel's assistance was reasonable

considering all the circumstances.’ ” Hinton, 134 S.Ct. at 1088, quoting

Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Accordingly, “[i]n order to

show deficient performance, the defendant must prove that counsel's

performance fell below an objective level of reasonable representation.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶

95 (citations omitted); accord Hinton, 134 S.Ct. at 1088, citing Padilla, 559

U.S. at 366, 130 S.Ct. 1473; State v. Wesson, 137 Ohio St.3d 309, 2013-

Ohio-4575, 999 N.E.2d 557, ¶ 81.

      {¶54} Moreover, when considering whether trial counsel's

representation amounts to deficient performance, “a court must indulge a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” Anderson at ¶ 25, quoting Strickland,

466 U.S. at 689, 104 S.Ct. 2052. Thus, “the defendant must overcome the
Washington App. No. 17CA30                                                     30

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Id. Additionally, “[a] properly licensed

attorney is presumed to execute his duties in an ethical and competent

manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-

482, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel's errors were “so serious” that counsel failed to

function “as the ‘counsel’ guaranteed * * * by the Sixth Amendment.”

Strickland, 466 U.S. at 687, 104 S.Ct. 2052; e.g., Obermiller at ¶ 84; State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v.

Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).

      {¶55} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that “ ‘but for counsel's errors, the result of the

proceeding would have been different. A reasonable probability is a

probability sufficient to undermine the outcome.’ ” Anderson, supra, at ¶ 26,

quoting Hinton, 134 S.Ct. at 1089, quoting Strickland, 466 U.S. at 694, 104

S.Ct. 2052; e.g., State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952

N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraph three of the syllabus; accord State v. Spaulding, 151 Ohio

St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, at ¶ 91 (indicating that prejudice
Washington App. No. 17CA30                                                    31

component requires a “but for” analysis). “ ‘[T]he question is whether there

is a reasonable probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.’ ” Hinton, 134 S.Ct. at 1089,

quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Furthermore, courts

may not simply assume the existence of prejudice, but must require the

defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike

No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No.

01CA2592 (Apr. 2, 2002). As we have repeatedly recognized, speculation is

insufficient to demonstrate the prejudice component of an ineffective

assistance of counsel claim. E.g., State v. Tabor, 4th Dist. Jackson No.

16CA9, 2017-Ohio-8656, at ¶ 34; State v. Jenkins, 4th Dist. Ross No.

13CA3413, 2014-Ohio-3123, at ¶ 22; State v. Simmons, 4th Dist. Highland

No. 13CA4, 2013-Ohio-2890, at ¶ 25; State v. Halley, 4th Dist. Gallia No.

10CA13, 2012-Ohio-1625, at ¶ 25; State v. Leonard, 4th Dist. Athens No.

08CA24, 2009-Ohio-6191, at ¶ 68; accord State v. Powell, 132 Ohio St.3d

233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that is

purely speculative cannot serve as the basis for an ineffectiveness claim).

                            LEGAL ANALYSIS

      1. Failure to investigate Appellant’s case.

      2. Failure to call necessary witnesses.
Washington App. No. 17CA30                                                     32

      {¶56} Because Appellant’s arguments regarding investigation and

calling witnesses are interrelated, we consider them jointly. State v.

Maloney,--N.E.3d--, 2018-Ohio-316 (2nd Dist.), cited the Supreme Court of

Ohio’s decision in State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373

(1989), at ¶ 55, as follows:

      “It is axiomatic that effective representation of a client carries
      with it a burden to investigate. ‘* * * [C]ounsel has a duty to
      make reasonable investigations or to make a reasonable
      decision that makes particular investigations unnecessary. In
      any ineffectiveness case, a particular decision not to investigate
      must be directly assessed for reasonableness in all the
      circumstances, applying a heavy measure of deference to
      counsel's judgments.’ Strickland, supra, 466 U.S. at 691, 104
      S.Ct. at 2066. See, also, Powell v. Alabama, 287 U.S. 45, 53
      S.Ct. 55 (1932).”

      {¶57} We also note that “[g]enerally, decisions to call witnesses is

within the purview of defense counsel's trial strategy and is not considered

deficient performance absent a showing of prejudice.” State v. Spires, 4th

Dist. Gallia No. 10CA10, 2011-Ohio-3661, at ¶ 30, quoting State v. Jackson,

4th Dist. Lawrence No. 97CA2, 1997 WL 749480, at *2, citing State v.

Hunt, 20 Ohio App.3d 310, 312, 486 N.E.2d 108 (4th Dist.1984).

      {¶58} Appellant argues that he explained to his counsel that he acted

in self-defense after he was threatened with serious harm. Thereafter, he

gave counsel a list of witnesses which should have been interviewed and

called for trial. Appellant asserts that counsel initially advised Appellant he
Washington App. No. 17CA30                                                       33

would interview the witnesses and call them for trial, but as the trial date

approached, he “changed courses.” Appellant contends these witnesses’

testimony would have corroborated his own testimony and bolstered his self-

defense claim, given that the case hinged on his credibility versus that of

Rhodes.

      {¶59} In our evaluation of Appellant’s arguments, we are constrained

by the fact that Appellant supports his claims that counsel failed to

investigate his case and failed to call necessary witnesses by his sworn

affidavit attached to his supplemental brief. As such, they constitute matters

outside of the record. It is simply not permissible on direct appeal to add to

the record transmitted from the trial court. See Morgan v. Eads, 104 Ohio

St.3d 142, 2004–Ohio–6110, ¶ 13 (“[A] bedrock principle of appellate

practice in Ohio is that an appeals court is limited to the record of the

proceedings at trial.”). To this extent, we are unable to address the merits of

Appellant’s claims that his counsel failed to investigate his case and failed to

call necessary witnesses and therefore, rendered ineffective assistance.

      {¶60} And, to the extent that Appellant’s claim that his attorney did

not properly investigate the facts can rely upon the record transmitted on

appeal, it is not credible. The record indicates that trial counsel requested,

amongst other filings on Appellant’s behalf, a motion for discovery, a
Washington App. No. 17CA30                                                     34

motion for permission to photograph the jail area, and a multi-branch motion

to compel, which included request for audio/video recordings from the jail

four hours prior to the incident. He also made requests for Rhodes’ inmate

and criminal history. See State v. Gannon, 4th Dist. Lawrence No. 14CA16,

2015-Ohio-1573, at ¶ 20; State v. Knott, 4th Dist. Athens No. 03CA06,

2004–Ohio–510, at ¶ 23, (where the record indicated that defense counsel

demanded discovery under Criminal Rules 7(E) and 16, defendant’s

contention that his attorneys did not properly investigate the facts was not

credible.) Accordingly, we reject the first and second arguments advanced

under Appellant's pro se assignment of error.

      3. Failure to file merit-worthy motions.

      {¶61} Appellant also contends that he was denied a fair trial due to

the State’s failure to provide discovery and trial counsel’s failure to file

motion to suppress, dismiss, or for mistrial, based on a Brady violation. A

criminal defendant's due process right to a fair trial is violated when the

prosecution withholds materially exculpatory evidence. State v. Blanton, --

N.E.3d--, 2018-Ohio-1278, at ¶ 88, citing Brady v. Maryland, 373 U.S. 83,

87, 83 S.Ct. 1194 (1963); State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-

5239, 878 N.E.2d 1, ¶ 7; State v. Johnston, 39 Ohio St.3d 48, 60, 529 N.E.2d

898 (1988). Fox, supra, at ¶ 25.
Washington App. No. 17CA30                                                       35

      {¶62} Appellant asserts that when the video of the altercation in the

jail was first provided to his counsel, counsel was unable to operate it and

consequently, made numerous requests for a video he could operate.

Eventually Appellant was taken to the prosecutor’s office and viewed a

video depicting the incident. Appellant further asserts that at trial: (1) the

State played a longer video for the jury, which failed to provide a complete

depiction of events 45 minutes to an hour before the altercation; (2) trial

counsel acknowledged the discrepancy to him; and (3) counsel lodged no

objection as to the missing video. As a result, Appellant contends that the

State prevented him from preparing a proper defense based upon the actual

evidence that the State was planning to present to the jury.

      {¶63} Furthermore, Appellant argues the discrepancy in the video

provided and the video utilized at trial was a Brady violation. As such,

Appellant asserts his trial counsel should have filed either a motion to

suppress the video, a motion to dismiss the indictment against him, or a

motion for a mistrial, based on the State’s actions. Having not done so,

Appellant argues his trial counsel’s representation was deficient. Again, we

point out that the alleged discrepancy in the video and counsel’s alleged

recognition of such are matters outside of the record on appeal.
Washington App. No. 17CA30                                                       36

      {¶64} A “ ‘failure to file a suppression motion does not constitute per

se ineffective assistance of counsel.’ ” State v. Adkins, ¶ 14, quoting

Madrigal, 87 Ohio St.3d at 389, quoting Kimmelman v. Morrison, 477 U.S.

365, 384, 106 S.Ct. 2574, (1986); accord State v. Neyland, 139 Ohio St.3d

353, 2014–Ohio–1914, 12 N.E.3d 1112, ¶ 126. “To establish ineffective

assistance of counsel for failure to file a motion to suppress, a defendant

must prove that there was a basis to suppress the evidence in question.” State

v. Brown, 115 Ohio St.3d 55, 2007–Ohio–4837, 873 N.E.2d 858, ¶ 65, citing

State v. Adams, 103 Ohio St.3d 508, 2004–Ohio–5845, 817 N.E.2d 29, ¶ 35.

“ ‘Where the record contains no evidence which would justify the filing of a

motion to suppress, the appellant has not met his burden of proving that his

attorney violated an essential duty by failing to file the motion.’ ” State v.

Drummond, 111 Ohio St.3d 14, 2006–Ohio–5084, 854 N.E.2d 1038, ¶ 208,

quoting State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th

Dist.1980); accord Neyland at ¶ 126.

      {¶65} Assuming a prior video did exist, we would not find a Brady

violation to have occurred. Under the law set forth in Brady, to determine if

a defendant's alleged due process rights are violated, courts characterize lost

or destroyed evidence as (1) “materially exculpatory” or (2) “potentially

useful.” Blanton, supra, at ¶ 88, quoting State v. Gerald, supra, at ¶ 15.
Washington App. No. 17CA30                                                     37

Evidence is materially exculpatory “ ‘only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A “reasonable probability” is a

probability sufficient to undermine confidence in the outcome.’ ” Johnston,

supra, 39 Ohio St.3d at 61, 529 N.E.2d 898, quoting United States v. Bagley,

473 U.S. 667, 682, 105 S.Ct. 3375 (1985). Fox, supra, at ¶ 25.

      {¶66} Whether evidence is materially exculpatory is a question of

law. See, e.g., Geeslin at ¶¶ 12–13 (not specifically setting forth standard of

review but seemingly reviewing materially exculpatory question as a matter

of law). Ordinarily, a defendant bears the burden to prove that withheld

evidence is materially exculpatory. Blanton, supra; Fox at ¶ 26; Rivas at

¶ 14; Lupardus at ¶ 20. When, however, a defendant specifically requests a

particular piece of evidence and that evidence is subsequently lost or

destroyed, the burden shifts to the state to show that the evidence was not

materially exculpatory. Lupardus at ¶ 21. (Internal citations omitted.) The

burden does not shift to the state if the defendant makes only a general

request for discovery. Lupardus at ¶ 22. Instead, for the burden to shift to

the state, the defendant must have made a specific request regarding the

particular piece of evidence. Lupardus at ¶ 22. Thus, when “evidence is

destroyed pursuant to routine procedures before any request for it has been
Washington App. No. 17CA30                                                       38

made, it is not the State's burden to show that the evidence was not

exculpatory, but rather Defendant's burden to show that it was exculpatory.”

State v. Terry, 2nd Dist. Greene No. 04CA63, 2004-Ohio-7257, at ¶ 15.

      {¶67} Here, the record indicates Attorney Raymond Smith, on behalf

of Appellant’s first counsel of record, Attorney Eric Fowler, filed a general

request for discovery early in the case. Attorney Smith filed a motion to

preserve evidence, specifically “videos * * * that would concern this case”

on November 23, 2016. A second motion to preserve evidence was filed on

February 27, 2017. Appellant’s trial counsel, Attorney George Cosenza, did

not enter an appearance until March 14, 2017. On that date he also filed a

specific request for a particular piece of evidence. He filed a motion to

compel, which included “any and all audio/video recordings at the

Washington County Jail, beginning four hours prior to the incident.”

      {¶68} At trial, Officer Marry Perry and Lieutenant Jeff Young both

testified that the video recording system at the jail is constantly recording.

Lieutenant Young testified he automatically preserved a video of the

incident, pursuant to jail protocol in such events. To make a video of the

incident, he started the recording 1-2 minutes prior to the incident.

Lieutenant Young also testified the video is preserved only 30-40 days.
Washington App. No. 17CA30                                                      39

      {¶69} In this case, the specific video which Appellant’s trial counsel

requested was unavailable due to the operation of routine procedures. As

such, the burden is on Appellant to demonstrate that the video was

materially exculpatory. Appellant contends the missing video which counsel

requested would show an incident occurring 45 minutes to an hour prior to

the incident on video and viewed by the jury. Appellant testified this prior

incident demonstrated Rhodes using racial epithets and making threats of

serious bodily harm in an earlier dispute over the television.

      {¶70} For the foregoing reasons, we do not find a Brady violation in

this matter. We disagree that this material, if it existed, would exculpate

defendant. As discussed above, the jury was instructed that words alone do

not justify the use of violence, no matter how provocative the words are.

      {¶71} Appellant’s argument is that counsel was ineffective for failing

to file a motion to suppress, a motion to dismiss the indictment against him,

or file a mistrial based on the Brady violation. To prove ineffective

assistance on the basis of a failure to file a particular motion, a defendant

must establish that the motion stood a reasonable probability of success.

State v. Adkins, 161 Ohio App. 3d 114, 2005-Ohio-2577, 829 N.E.2d 729

(4th Dist.) at ¶ 14. See State v. Hollis, 9th Dist. Stark No. 2004CA00207,

2005-Ohio-1486, at ¶ 25; State v. Morrison, 4th Dist. Highland No.
Washington App. No. 17CA30                                                      40

03CA13, 2004-Ohio-5724, at ¶ 10; State v. Haskell, 6th Dist. Seneca No.

13–03–45, 2004-Ohio-3345, at ¶ 19. Having found no Brady violation, we

do not find counsel’s representation was deficient for failing to file one of

the above-referenced motion.

      {¶72} Finally, Appellant also argues his trial counsel was ineffective

for failing to object to the jury pool, which did not include any African

Americans or anyone in his age peer group. The Sixth Amendment

guarantee to a jury trial “contemplates a jury drawn from a fair cross section

of the community.” State v. Elmore, 5th Dist. Licking No. 2005CA32, 2005-

Ohio-5940, at ¶ 55, quoting Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct.

692, 696, (1975). Appellant argues that his case is a textbook example of a

Sixth Amendment violation as the jury did not represent a “fair cross-

section” of the community. As such he concludes that he was rendered the

ineffective assistance of counsel and denied his right to a fair trial.

      {¶73} Our Court considered a similar argument in State v. Walton, 4th

Dist. Ross No. 03CA2716, 2003-Ohio-6514. There, appellant also asserted

that counsel rendered ineffective assistance of counsel for failing to object to

the jury pool or the empaneled jury. Our consideration of Walton’s

argument led us to the Supreme Court of Ohio’s decision in State v. Jones,

91 Ohio St.3d 335, 339-40, 744 N.E.2d 1163 (2001), wherein the court
Washington App. No. 17CA30                                                      41

discussed the requirement of a jury composed of a cross-section of the

community as follows:

      “ ‘[T]he selection of a petit jury from a representative cross
      section of the community is an essential component of the Sixth
      Amendment right to a jury trial.’ Taylor v. Louisiana, 419 U.S.
      522, 528, 95 S.Ct. 692, 697 (1975). However, the Sixth
      Amendment does not require that petit juries ‘mirror the
      community and reflect the various distinctive groups in the
      population.’ Id. at 538, 95 S.Ct. at 702. Under the Sixth
      Amendment, ‘[d]efendants are not entitled to a jury of any
      particular composition, * * * but the jury wheels, pools of
      names, panels, or venires from which juries are drawn must not
      systematically exclude distinctive groups in the community and
      thereby fail to be reasonably representative thereof.’ ” Id.

      {¶74} The Jones court looked to the decision in Duren v. Missouri,

439 U.S. 357, 99 S.Ct. 664 (1979), wherein the United States Supreme Court

held that in order to establish a prima facie violation of the Sixth

Amendment's fair cross-section requirement, a defendant must demonstrate

“ ‘(1) that the group alleged to be excluded is a “distinctive” group in the

community; (2) that the representation of this group in venires from which

juries are selected is not fair and reasonable in relation to the number of such

persons in the community; and (3) that the underrepresentation is due to

systematic exclusion of the group in the jury-selection process.’ Id. at 364,

99 S.Ct. at 668. Accord State v. Fulton, 57 Ohio St.3d 120, 566 N.E.2d

1195, (1991), paragraph two of the syllabus.”
Washington App. No. 17CA30                                                     42

         {¶75} In Walton, we noted the first prong of the Duren analysis had

been satisfied. “For purposes of the fair cross-section analysis, African-

Americans are a distinctive group.” Jones (citing United States v. Buchanan

(C.A.6, 2000), 213 F.3d 302, 310; United States v. Rioux (C.A.2, 1996), 97

F.3d 648, 654). Walton, at ¶ 27. However, we found Walton had not

established the second or third prongs of the Duren analysis. We held at

¶ 28:

         “The second element requires the defendant to ‘demonstrate the
         percentage of the community made up of the group alleged to
         be underrepresented, for this is the conceptual benchmark for
         the Sixth Amendment fair-cross-section requirement.’ Duren,
         439 U.S. at 364. Appellant has not presented any evidence as to
         the percentage of African-Americans in the community. Under
         the third prong, the defendant must produce evidence that
         African-Americans are systematically excluded.
         ‘[U]nderrepresentation on a single venire is not systematic
         exclusion.’ State v. McNeill, 83 Ohio St.3d 438, 444, 700
         N.E.2d 596 (1998).”

We concluded Walton had not produced any evidence showing that African-

Americans are systematically excluded. We continued as follows at ¶ 30:

        “Even if the appellant's venire was underrepresentative, the
        appellant has not presented any evidence of ‘systematic
        exclusion’ as required under the third prong of Duren. Appellant
        must do more than show that his particular panel was
        unrepresentative. Where, as here, the trial court relies upon voter
        registration lists, the defendant-appellant “must demonstrate that
        the voter-registration qualifications are suspect, or that the jury-
        selection procedure is administered in a discriminatory manner.”
        United States v. Ireland (C.A.8, 1995), 62 F.3d 227, 231. There
        is nothing inherently unconstitutional about using voter-
Washington App. No. 17CA30                                                     43

     registration rolls as exclusive sources for jury selection. [State v.
     Moore, 81 Ohio St.3d 22, 28, 689 N.E.2d 1 (1998)]. Because
     appellant has failed to demonstrate systematic discrimination, we
     reject his Sixth Amendment claim.” State v. Jones, 91 Ohio St.3d
     335, 339-41, 744 N.E.2d 1163 (2001).”

     {¶76} We ultimately concluded that Walton, like the Jones defendant,

had not presented any evidence to demonstrate his claim that the jury failed

to represent a cross-section of the community. Instead, Walton relied only

upon conclusory allegations. The same may be said here.

     {¶77} While African-Americans are a distinctive group for purposes of

the fair cross-section analysis, Appellant has failed to meet the 2nd or 3rd

prongs of Duren. He has not presented any evidence as to the percentage of

African-Americans in Washington County. Nor has he provided any

evidence that African-Americans are systematically excluded in Washington

County. Appellant’s argument relies solely upon conclusory allegations.

     {¶78} Appellant also asserts his counsel was deficient for failing to

object to the jury which did not include anyone in his age group. We also

note that a criminal defendant has no affirmative right to a jury of a

particular racial, gender or age composition. Elmore, supra, at ¶ 56. See

United States v. Mack, 159 F.3d 208 (6th Cir.1998); see also Taylor v.

Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692 (1975). Here, Appellant has not

provided us any case law to support his claim that he was entitled to a jury
Washington App. No. 17CA30                                                   44

with a particular age composition. Again, Appellant’s counsel was not

deficient for failing to file a motion which had no likelihood of success.

     {¶79} We find no merit to Appellant’s argument that his trial counsel

was ineffective for failure to object to the jury venire based on race and age.

For the foregoing reasons, we find no merit to Appellant’s second

assignment of error. It is hereby overruled.

     {¶80} Accordingly, after thorough review of the record, we affirm the

judgment of the trial court.

                                                 JUDGMENT AFFIRMED.
Washington App. No. 17CA30                                                    45

Harsha, J., concurring:

      {¶81} I concur in the judgment overruling Purvis-Mitchell’s

assignments of error but write separately to address his pro se assignment of

error, which claims that his trial counsel was ineffective for various reasons.

Because he relies on purported evidence that is not contained in the record

on appeal, I would overrule his assignment of error on that basis. See State

v. Williams, 4th Dist. Jackson No. 15CA3, 2016-Ohio-733, ¶ 38 (“direct

appeal is not the proper vehicle to raise an ineffective-assistance claim

premised on evidence outside the record”). Any additional discussion of the

merits of his claim is unnecessary.
Washington App. No. 17CA30                                                     46

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only with Opinion.

                                        For the Court,

                                 BY: _____________________________
                                     Matthew W. McFarland

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
