[Cite as State v. Davenport, 2018-Ohio-2933.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106143



                                            STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                     CHARLES H. DAVENPORT

                                                         DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-15-600942-A

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

        RELEASED AND JOURNALIZED: July 26, 2018
ATTORNEYS FOR APPELLANT

Russell S. Bensing
Scott J. Friedman
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

        {¶1} Defendant-appellant, Charles H. Davenport, appeals his conviction and raises the

following assignment of error for our review:

        The defendant was denied the effective assistance of counsel, in derogation of his
        rights under the Sixth Amendment to the United States Constitution, and Article I,
        Section 10 of the Ohio Constitution.

        {¶2}    Finding no merit to his assignment of error, we affirm.

I. Procedural History and Factual Background

        {¶3}    On November 16, 2015, a Cuyahoga County Grand Jury indicted Davenport for

two counts of aggravated murder in violation of R.C. 2903.01(A) and (B), one count of murder in

violation of R.C. 2903.02(B), two counts of aggravated arson in violation of R.C. 2909.02(A)(1)

and (2), and one count of felonious assault in violation of R.C. 2903.11(A)(1).1

        {¶4}    On January 13, 2016, Davenport’s trial counsel filed a motion with the court to

appoint an independent psychological expert for assistance. Davenport’s trial counsel argued

that a psychological expert was necessary to assist them in effectively representing Davenport,

who had a “history of psychiatric and/or psychological treatment.” The state opposed the

motion, arguing that Davenport was not entitled to an independent evaluation by a psychological

expert at the state’s expense because he had yet to undergo an initial examination by the court

psychiatric clinic.

        {¶5}    The trial court granted Davenport’s motion over the state’s objection and

appointed Dr. James J. Karpawich who drafted a detailed report that was included in the record



        1
          At trial, the state amended Count 2 for aggravated murder in violation of R.C. 2903.01(B),
striking the language “and/or felonious assault in violation of Revised Code 2903.11(A)(1)” from the
indictment.
as defendant’s Exhibit A.       In his report, Dr. Karpawich reviewed records from Cuyahoga

County Jail, records from the Cuyahoga County Court website, records from the medical centers

and hospitals where Davenport received mental health treatment, and results from psychological

tests. The report described Davenport’s background information, mental health and medical

history, alcohol and drug history, legal history, and psychological state.

        {¶6}    Before trial, the state and Davenport’s trial counsel agreed to stipulate to Dr.

Karpawich’s finding in his report that Davenport was competent.2              During the hearing, the

following exchange took place:

        DEFENSE
        COUNSEL:        In an abundance of caution we will stipulate to that report, wherein
                                Dr. Karpawich opined that our client, Mr. Davenport, is
                                competent.

        ***

        STATE:                  Your Honor, the State likewise would stipulate to that
                                report and findings.

        COURT:                  That report was in August. Is there anything in your
                                discussions with Mr. Davenport [that] would lead you to
                                believe that he has regressed in any way or anything?



        2
          Davenport had different trial counsel throughout the pretrial proceedings and trial itself.
The court appointed two attorneys to represent Davenport on November 19, 2015; however, on June
20, 2016, one of those attorneys withdrew as counsel after he was “hired by the United States Social
Security Administration to serve in the capacity of Administrative Law Judge,” which required him
“to immediately withdraw from all active cases in order to serve in that capacity.” On August 20,
2016, the second attorney passed away.

         The court subsequently appointed two more attorneys as Davenport’s trial counsel. Despite
the last minute change in counsel, during a pretrial hearing, the trial court stated, “Mr. Davenport, let
me tell you something. You got two real good attorneys here. Both of them have many years of
trial experience. Both of them are totally respected by the Court, the prosecution and the Defense
Bar in general. These are two good attorneys here.”
          DEFENSE
          COUNSEL:       No.

          COURT:                 So we will have a stipulation as to the competency and the
                                 sanity of the defendant?

          STATE:                 I don’t think sanity was ever addressed, your Honor. It was

                                 just strictly competency, I believe, was the only issue that

                                 was addressed.

          {¶7}    Also before trial, Davenport then waived his right to a trial by jury in open court

and in writing.     The trial court journalized Davenport’s waiver of his right to a trial by jury on

May 31, 2017.

          {¶8}    On June 1, 2017, the matter proceeded to a bench trial, during which the state

called nine witnesses, including numerous officers who responded to the scene, neighbors, and

relatives of the victim, Roman Sparks, whose house Davenport set fire to and who died as a

result.

          {¶9}    The underlying facts of the case are undisputed. On November 4, 2015, Charles

Winters was sitting with Sparks and a woman on Sparks’s front porch when he saw Davenport

walk past Sparks’s home into an adjacent alley.       Davenport, who neighbors stated had mental

health issues, went into the alley to go to the bathroom. According to Winters, Sparks became

upset and “start[ed] giving [Davenport] a hard time for what he was doing.” Angered by

Sparks’s comments, Davenport began walking toward Sparks’s front porch.                Sparks “told

[Davenport that] if he kept coming across the street, he would shoot him.” Sparks then pulled

out a gun, pointed it at Davenport, and threatened him. In response, Davenport “told him do not

pull out a gun on me again, I will burn you in your sleep.” Sparks then made a racially-charged

insult toward Davenport, who then left.
       {¶10} Later that afternoon, Carl Hardin, who lived in the neighborhood and knew

Davenport and Sparks, saw Davenport at a nearby gas station. Hardin testified that Davenport

told him to tell Sparks to stop threatening him or he was “going to do something to [Sparks].”

Despite Davenport’s statement, Hardin said that Davenport appeared “normal.”

       {¶11} Around 1:00 a.m. on November 5, Davenport knocked on the door of Tammy

Mahone, who lived across the street from Sparks with her son, Ryan. According to Mahone,

Davenport appeared “out of his mind” and asked her to have Ryan move his truck that was

parked next to Sparks’s house. Mahone testified that Davenport said he wanted to “burn up”

Sparks’s house “[b]ecause Rome pulled a gun on him.” She stated that she told Davenport that

Ryan was sleeping and also told him to “sleep off * * * whatever was bothering him.” She

testified that Davenport then left. Mahone testified, however, that Davenport returned a second

time about an hour and a-half later and made the same request, which she again denied. She

said that Davenport returned a third time, around 5:00 a.m., about two hours after his second

visit. She stated that Ryan answered the door during Davenport’s third visit, moved his truck,

and returned home.

       {¶12} A few hours after the interaction between Sparks and Davenport and sometime in

the early hours of November 5, Winters testified that he saw Davenport attempting to light

Sparks’s house on fire by “pouring gas on the bushes next to the house.” Winters said that he

told Davenport to stop and, after Davenport walked away, went back inside his home.

       {¶13} Later that same morning, police officers were dispatched to Roman Sparks’s house.

 When they arrived, the house was on fire and emergency personnel had transported Sparks to a

nearby hospital, where he was pronounced dead. Evidence presented at trial established that

Sparks died of smoke inhalation. Sparks’s dog also died of smoke inhalation.
       {¶14} Numerous officers testified that, upon arriving at the scene, Davenport, who was

not wearing a shirt, emerged from the alleyway across the street from Sparks’s house and

admitted to setting the fire. While the officers initially ignored Davenport’s statements, they

eventually detained him after confirming that the house was occupied and after the crowd started

to become “agitated” at Davenport. Around the same time, two of Sparks’s relatives arrived on

the scene and asked what happened, to which Davenport responded, “I did it, I poured gas on his

porch, I lit it on fire and I stood there and watched them bring his dead body out.”

       {¶15} Later, but still at the scene, officers read Davenport his Miranda rights.

Davenport then “said he already knew what was going on and [] broke everything down on what

he did.” Davenport explained that Sparks “pulled a gun on him for the second time.” He said

that Sparks “threatened [his] life with a pistol” and that he “was not going to play with anybody

like that.” Davenport stated that he threatened Sparks and then went to the gas station to get gas

to start the fire. He said that he told multiple people in the neighborhood that he was planning

to set fire to Sparks’s house. He also freely admitted that he set the fire after making “several

attempts” with paper and his shirt and that the fire was “premeditated.”

       {¶16} During his conversation with police, Davenport also stated that some of the police

officers looked familiar because he was “in and out of nut houses.” He told officers that he “was

a cutter” and was “psychotic.” He also informed the officers that he was just released from

MetroHealth hospital less than a week earlier.

       {¶17} Footage from police officers’ body cameras shows that Davenport was calm and

cooperative when officers detained him and when he explained what happened to the officers.

Officers stated that Davenport did not attempt to flee and was not combative when police arrived

on the scene.
       {¶18} Officers also investigated the alley where Davenport claimed to have watched the

house burn.    There they found and collected Davenport’s shirt, a gas can, a plastic bottle

containing gasoline, and beer. Officers then transported Davenport to jail. At the jail, officers

collected Davenport’s clothes, which had traces of accelerant.

       {¶19} Detectives from the Cleveland Homicide Unit subsequently interviewed Davenport

later that day on November 5, 2015. During the interview, Davenport stated that he confessed

to the police officers on scene, but that he did not “want to get too much further into it without a

lawyer.” He then stated that he “did the crime” and that there “was no use in hiding or trying to

deny it.” Davenport then asked the detective if he would receive capital punishment and stated

that it would be “understandable. A life for a life, ya know.” Davenport also told detectives that

after he purchased the gas but before he lit the fire, he “started drinking real heavy” and did “a

ton of cocaine.”

       {¶20} After the state rested, Davenport moved for a dismissal of all charges under

Crim.R. 29 as to Counts 1 and 2 for aggravated murder and Count 6 for felonious assault,

arguing that the evidence presented showed that Davenport was “in a rage” and, therefore, did

not establish that Davenport acted “purposely” as required for a charge of aggravated murder.

As to Count 6, Davenport’s trial counsel argued that that count should merge with Count 3 for

murder. The trial court denied his motion. Davenport rested his case without presenting any

witnesses and again moved for dismissal under Crim.R. 29, which the court again denied.

       {¶21} The trial court found Davenport guilty of all counts. It found that the counts for

aggravated murder and aggravated arson merged and the state elected to proceed on aggravated

murder in violation of R.C. 2903.01(A). The court also found that the count for aggravated
arson in violation of R.C. 2909.02(A)(1) merged with the count for felonious assault, and the

state elected to proceed on aggravated arson.

       {¶22} The court referred Davenport to the court’s psychiatric clinic for “psychiatric

recommendations regarding disposition.”

       {¶23} At the sentencing hearing, the court sentenced Davenport to life in prison without

eligibility for parole for 25 years for his conviction of aggravated murder and five years for his

conviction for aggravated arson, which was to run consecutively to his life term.

II. Law and Analysis

       {¶24} In his sole assignment of error, Davenport argues that he was denied the effective

assistance of counsel, specifically pointing to his trial counsel’s failure to “investigate the issue

of [Davenport’s sanity]” and “pursue an insanity defense,” which according to him, was “the only

defense which had any possibility of success.”

       {¶25} The burden is on appellant to prove ineffectiveness of counsel. State v. Smith, 17

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). To establish ineffective assistance of counsel, a

defendant must show (1) deficient performance by counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

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

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. To show

prejudice, a defendant must establish that there is a reasonable probability that, but for counsel’s

deficient performance, the result of the proceeding would have been different. State v. Hale,

119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688, 694;
Bradley at paragraph two of the syllabus. The failure to make a showing of either deficient

performance or prejudice defeats a claim of ineffective assistance of counsel.      Strickland at 697.

       {¶26} Trial counsel is strongly presumed to have rendered adequate assistance. Id. at 699.

 “Trial strategy or tactical decisions cannot form the basis for a claim of ineffective counsel.”

State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v. Clayton, 62

Ohio St.2d 45, 402 N.E.2d 1189 (1980).        Additionally, the failure to do a futile act cannot be the

basis for claims of ineffective assistance of counsel, nor could such a failure be prejudicial.

State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 37.

       {¶27} “In any effectiveness 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 at 695.

       {¶28} “If the ‘facts and circumstances indicate that a plea of not guilty by reason of

insanity [“NGRI”] would have had a reasonable probability of success, it is ineffective assistance

of counsel to fail to enter the plea.’” State. v. Gilmore, 8th Dist. Cuyahoga No. 103479,

2016-Ohio-4697, ¶ 8, quoting State v. Allen, 8th Dist. Cuyahoga No. 91750, 2009-Ohio-2036.

“Where, however, the facts indicate that counsel was pursuing a reasonable strategy in failing to

so plead, or where the likelihood of success for the plea is low, counsel’s actions will not be

determined to be unreasonable.”      Id., citing Allen.      Put simply, even if Davenport’s trial

counsel failed to “investigate the issue of [Davenport’s] sanity,” that failure only constitutes

ineffective assistance of counsel if the record establishes that a NGRI plea would have had a

reasonable probability of success.

       {¶29} “A person is ‘not guilty by reason of insanity’ relative to a charge of an offense

only if the person proves [by a preponderance of the evidence] that at the time of the commission
of the offense, the person did not know, as a result of a severe mental disease or defect, the

wrongfulness of the person’s acts.” R.C. 2901.01(A)(14).

       {¶30} Here, while the record establishes that Davenport suffered mental health problems,

which the dissent discusses at length, it does not show that Davenport was unable to understand

the difference between right and wrong. See State v. May, 1st Dist. Hamilton No. C-070290,

2008-Ohio-1731, ¶ 7 (“Thus, it was not enough that May had been diagnosed with a mental

disease. May had to have been unaware that it was wrong to walk into a bank, threaten the

teller, and steal money.”).   In fact, the dissent’s conclusion that “reasonable diligence would

compel counsel to make a simple and almost effortless investigation concerning a possible

mental defect being present at the time that Davenport committed these acts[,]” does not

establish that a NGRI would have been successful. In addition to having a mental defect, a

defendant must show that the person did not know the wrongfulness of his acts because of that

mental defect.

       {¶31} The record, including footage from the police officers’ body cameras and a video

recording of the homicide detectives’ interview with Davenport after the crime, shows that

Davenport knew his actions were wrong. Footage from police officers’ body cameras as well as

footage from Davenport’s interview with homicide detectives shows that he was calm and

cooperative with officers immediately after the fire and the next morning.     While Davenport

argues that this tends to show that he was insane, Davenport’s responses to the officers’

questions actually establish that he knew what he was doing at the time of the crime and that he

knew it was wrong. Davenport stated that the fire was “premeditated” and that he set fire to

Sparks’s house because Sparks “threatened [his] life with a pistol” and that he “was not going to

play with anybody like that.” Davenport’s decision to remain at the scene and immediately turn
himself over to the police also suggests that he knew it was wrong. Davenport also indicated

that he knew setting Sparks’s home on fire was wrong when he asked the homicide detective if

he would receive capital punishment and stated that if he did, it would be “understandable.”

       {¶32} Further, the trial court granted Davenport’s motion for an independent

psychological evaluation, which Davenport’s trial counsel stated was necessary to “effectively

represent Mr. Davenport” and “to protect [his] constitutional rights.”   The motion did not limit

the evaluation’s scope to Davenport’s competency alone.         As a result, it is reasonable to

conclude that Dr. Karpawich explored more than Davenport’s competency and that any relevant

information concerning Davenport’s psychological state, including his sanity at the time of the

crime, was provided to Davenport’s trial counsel, who the trial court noted were “two real good

attorneys” and who ultimately decided to not pursue a NGRI plea.

       {¶33} Information included in Dr. Karpawich’s report actually suggests that a NGRI plea

would not have been successful. The report included numerous statements by Davenport that

he was “sad and depressed,” “feeling irritable, angry, and upset for a long time,” and “often had

thoughts of harming others as well as himself.” Dr. Karpawich’s report noted that Davenport

voluntarily committed himself “on several occasions due to concerns about his suicidal thoughts

and his fear that he may harm others.” Davenport’s decisions to commit himself based on his

fear of harming others suggests that he knew that harming others was wrong. See May, 1st Dist.

Hamilton No. C-070290, 2008-Ohio-1731, at ¶ 8 (“He would not have admitted to his

mental-health counselor that he was depressed and was thinking about robbing a bank if he did

not know that robbery was wrong.”).

       {¶34} The dissent cites to Tammy Mahone’s testimony where she described Davenport as

“out of his mind.”   At most, Mahone’s testimony could arguably be evidence that Davenport
was suffering from a mental defect at the time; however, Mahone’s testimony did not provide

any evidence showing that Davenport did not know that burning down Sparks’s house was

wrong. In fact, Mahone also testified that Davenport asked Mahone’s son to move his truck

because he was going to burn Sparks’s home down and that he planned on doing so because

Sparks pulled a gun on him. That testimony shows that Davenport’s actions were premeditated

and that his actions were the result of a desire for revenge, not of a mental defect.

       {¶35} Further, Mahone’s observation that Davenport was “out of his mind” may have

been the result of Davenport’s drug and alcohol use that day.             According to the record,

Davenport “was drinking alcohol on a daily basis, smoking marijuana a few times a week, and

snorting powder cocaine and pain pills” around the time that he set fire to Sparks’s home.

Davenport admitted to police officers that he drank heavily and had done “a ton of cocaine” prior

to setting the fire. Voluntary intoxication and drug use, however, is not enough to demonstrate

that Davenport failed to recognize the wrongfulness of his actions.              Gilmore, 8th Dist.

Cuyahoga No. 103479, 2016-Ohio-4697, at ¶ 10 (the defendant knew the wrongfulness of her

actions even though the defendant “admitted to being a daily cocaine abuser” and “also admitted

to smoke the drug K2 prior to committing the offense”).          As Dr. Karpawich’s report noted,

despite Davenport’s multiple hospitalizations for his mental health and drug abuse issues,

Davenport continued to abuse drugs and alcohol, which only exacerbated his mental health

issues. Dr. Karpawich also noted that Davenport was previously diagnosed with “PCP-induced

mood disorder [and] mixed drug dependence (PCP, THC, alcohol)” and that Davenport

previously reported that “drugs have made him feel depressed, suicidal, and aggressive at

different times.”   Therefore,    Davenport’s voluntary consumption and abuse of drugs and
alcohol neither excuses his heinous crime nor supports his argument that a NGRI plea would

have been successful.

       {¶36} Therefore, because a NGRI plea did not have a reasonable probability of success,

Davenport’s trial counsel’s decision to not pursue a NGRI plea was reasonable and did not

constitute ineffective assistance of counsel.

       {¶37} Accordingly, we overrule Davenport’s assignment of error.

       {¶38} Judgment affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.       The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.          Case remanded to the trial court for execution of

sentence.

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

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., CONCURS;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION


LARRY A. JONES, SR., J., DISSENTING:

       {¶39} Respectfully, I dissent.    I would find that Davenport was deprived of his right to

effective assistance of counsel and reverse his conviction.
       {¶40} Attorneys for Davenport failed to pursue a NGRI defense and their failure to

investigate this defense constituted ineffective assistance of counsel. Dr. Karpawich noted in

his report that Davenport had a “significant history of mental health as well as substance abuse

problems.”    In the past, Dr. Karpawich noted, Davenport had been diagnosed with major

depressive disorder, mood disorder, bipolar disorder, intermittent explosive disorder, borderline

personality disorder, and polysubstance abuse/dependence.

       {¶41} Dr. Karpawich reported that Davenport had “had chronic suicidal thoughts and

auditory hallucinations since he was a teenager.” Davenport had been hospitalized five times in

the 15 months prior to the instant offense and had symptoms that included “depression, suicide

attempts, auditory hallucinations, irritability, impulsivity, anger, paranoia, social isolation, guilt

and feelings of helplessness/hopelessness.” He had attempted suicide several times and was

hospitalized less than three weeks before he set fire to Sparks’s house. He was admitted to the

psychiatric unit for stabilization on October 17, 2015, because he was hearing auditory

hallucinations telling him to hurt himself.    While in the hospital, Davenport continued to have

suicidal thoughts, his mood was depressed, and he felt paranoid. He was discharged one week

before the instant offense.

       {¶42} Dr. Karpawich opined that Davenport was competent to stand trial. The doctor,

however, did not assess his sanity at the time of the act. Although the majority opines that “it is

reasonable to conclude that Dr. Karpawich explored more than Davenport’s competency and that

any relevant information concerning Davenport’s psychological state, including his sanity at the

time of the crime, was provided to Davenport’s trial counsel, who the trial court noted were ‘two

real good attorneys,”’ the record does not support that conclusion. Dr. Karpawich’s report is

clearly a competency to stand trial evaluation requested by Davenport’s first set of attorneys.
Davenport’s trial attorneys, the “two real good attorneys,” did not represent Davenport until after

he had met with Dr. Karpawich. In fact, the report is dated August 16, 2016, which is before

the date one of his trial attorneys was assigned to the case. Thus, what was reasonable to

conclude is that Davenport’s trial counsel decided to rely on what his first set of attorneys

requested from Dr. Karpawich, which was a competency to stand trial evaluation.

        {¶43} As mentioned, R.C. 2901.04(A)(14) provides that a person is “not guilty by reason

of insanity” if that person proves “at the time of the commission of the offense, the person did

not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.”

 But a defendant only needs to prove NGRI by a preponderance of the evidence.              State v.

Rickard, 6th Dist. Wood Nos. WD-15-046 and WD-15-047, 2016-Ohio-3374, ¶ 18, citing State

v. Filiaggi, 86 Ohio St.3d 230, 242, 714 N.E.2d 867 (1999). “Therefore, the burden is not

necessarily high. Nevertheless, no burden can be met by unpresented evidence.” Id.

        {¶44} Witness Tammy Mahone described Davenport as “out of his mind” when he

requested Mahone have her son move his truck because he wanted to burn down Sparks’s house.

 After the fire, Davenport remained on scene and loudly pronounced that he set the fire and

explained to police how he set the fire. He made no attempt to flee the scene or dispose of the

items he used to set the fire.

        {¶45} In this case, as a result of the disturbing testimony of each of the eyewitnesses,

reasonable diligence would compel counsel to make a simple and almost effortless investigation

concerning a possible mental defect being present at the time that Davenport committed these

acts — especially since Davenport’s original attorneys already had engaged a doctor to examine

him for competency to stand trial.     While the majority notes that this conclusion “does not

establish that a NGRI would have been successful[,]” the concern is not whether the defense
would have been successful – as the majority also notes, Davenport’s burden is to show a

reasonable probability that, but for counsel’s deficient performance, the result of the proceeding

would have been different.

       {¶46} A “reasonable probability” is a “probability sufficient to undermine confidence in

the outcome.”    Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674.       Based on the

record before us, I would find that Davenport’s burden has been met.

       {¶47} I also disagree that counsel’s failure to investigate and pursue an insanity defense

fell within the purview of trial strategy.   Based on the evidence provided by the state during

discovery, NGRI was likely to be the only defense available to Davenport.     Indeed, at trial, the

evidence presented left no doubt that Davenport caused the fire that killed Sparks, and defense

counsel admitted as much during closing arguments. Thus, I would find that counsel’s failure

to investigate and pursue an NGRI defense deprived Davenport of his right to effective assistance

of counsel.

       {¶48} I would reverse Davenport’s conviction and remand for further proceedings.
