[Cite as State v. Hayes, 2019-Ohio-257.]
                                      IN THE COURT OF APPEALS OF OHIO
                                         FOURTH APPELLATE DISTRICT
                                              ADAMS COUNTY


STATE OF OHIO,                                                  :

        Plaintiff-Appellee,                          :          Case No. 17CA1056

        vs.                                                     :

JOSHUA HAYES,                                        :          DECISION AND JUDGMENT ENTRY

        Defendant-Appellant. :

_________________________________________________________________

                                                         APPEARANCES:

Carly M. Edelstein, Columbus, Ohio, for appellant.1

Dave Yost, Ohio Attorney General, and Joel King, Assistant Attorney General, Columbus, Ohio,
for Appellee.


CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:1-17-19
ABELE, P.J.

        {¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of

conviction and sentence. A jury found Joshua Hayes, defendant below and appellant herein,

guilty of (1) forty counts of improper use of the Ohio Law Enforcement Gateway (OHLEG), in

violation of R.C. 2913.04(D), and (2) five counts of improper use of the Law Enforcement

Automated Database System (LEADS), in violation of R.C. 2913.04(C).

        {¶ 2} Appellant raises the following assignments of error for review:



        1
            Different counsel represented appellant during the trial court proceedings.
[Cite as State v. Hayes, 2019-Ohio-257.]
                 FIRST ASSIGNMENT OF ERROR:

                 “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
                 OF COUNSEL BY FAILING TO RAISE AN AFFIRMATIVE
                 DEFENSE PROVIDED FOR IN R.C. 2913.04.”

                 SECOND ASSIGNMENT OF ERROR:

                 “JOSHUA HAYES’ INDICTMENT AND CONVICTION
                 UNDER R.C. 2913.04(C) AND 2913.04(D) VIOLATED HIS
                 RIGHT TO DUE PROCESS AS GUARANTEED BY THE
                 FOURTEENTH AMENDMENT TO THE UNITED STATES
                 CONSTITUTION AND ARTICLE I, SECTION 16 OF THE
                 OHIO CONSTITUTION.”

                 THIRD ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT DENIED MR. HAYES THE EFFECTIVE
                 ASSISTANCE OF COUNSEL FOR COUNTS 40-42.”

        {¶ 3} The present case arises out of appellant’s alleged misuse of OHLEG and LEADS

while employed as a Village of Manchester police officer. After an audit raised suspicions,

Ohio Bureau of Criminal Investigation Special Agent David Hornyak investigated whether

appellant had made any improper searches.          Agent Hornyak subsequently determined that

appellant had conducted multiple           OHLEG and LEADS searches of himself and several

individuals, including Brian Edwards, Carla Knipp, Codey Carter, James White, Kristopher

Blanton, Sarah Lowman, David Rowe and Deanna Dryden.

        {¶ 4} An Adams County Grand Jury returned an indictment that charged appellant with

ninety-two counts of unauthorized use of OHLELG and seventeen counts of unauthorized use of

LEADS, all fifth-degree felonies, in violation of R.C. 2913.04. Appellant entered not guilty

pleas. Before trial, the state dismissed forty-four counts and the court renumbered the remaining
ADAMS, 17CA1056                                                                                    3

counts, which left forty-eight counts of unauthorized use of OHLELG and seventeen counts of

unauthorized use of LEADS.

        {¶ 5} At trial, OHLEG quality assurance specialist Michelle Roach-Haver testified that an

authorized user may access OHLEG for the administration of criminal justice only and that

“[c]uriosity is not an authorized use of OHLEG information.” Roach-Haver explained that the

OHLEG rules and regulations define “the administration of criminal justice” as follows:

        The detection, apprehension, detention, pre-trial release, post-trial release,
        prosecution, adjudication, correctional supervision, rehabilitation of accused
        persons or criminal offenders. This also includes criminal identification
        activities, the collections, storage, and dissemination of criminal history record
        information and criminal justice employment. In addition, administration of
        criminal justice includes crime prevention programs to the extent access to
        criminal history record information is admitted to law enforcement agencies for
        law enforcement programs as in record checks for individuals who participate in a
        neighborhood watch or safe house programs.

The state presented Roach-Haver with a copy of appellant’s request for OHLEG access. The

form states, just below appellant’s signature, that “[t]he undersigned agrees that all information

from this site is for law enforcement purposes ONLY. Any dissemination to the public is

strictly prohibited.”

        {¶ 6} Roach-Haver additionally related that every time a user logs in to OHLEG, the user

must agree to access OHLEG “for the official purposes of my agency and the administration of

criminal justice.” A user must also agree with the following two statements: (1) “I acknowledge

and agree that I will utilize this information exclusively for the administration of criminal justice

for the official purpose of my agency”; and (2) “I acknowledge that any unauthorized access or

misuse of the law enforcement information and data on this site is prohibited by Revised Code
ADAMS, 17CA1056                                                                                4

Section 2913.04 and constitutes a fifth degree felony.” Roach-Haver stated that the system will

not allow a user to continue unless the user agrees to the foregoing statements.

        {¶ 7} During Roach-Haver’s testimony, the state also introduced the OHLEG training

video. The training video states that “OHLEG sources are privileged and to be used in the

administration of criminal justice only.        Definition of such duties includes detection,

apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication,

correctional supervision, rehabilitation of accused persons, and identification activities as

outlined in the OHLEG rules and regulations.”

        {¶ 8} Roach-Haver testified that using OHLEG to inquire whether a friend has an

outstanding warrant is not a proper use of OHLEG. When questioned whether appellant may

have properly used OHLEG to determine whether his friend, Brian Edwards, had any active

warrants, Roach-Haver responded that OHLEG does not show any warrants–active or otherwise.

She later indicated that, although OHLEG would not display warrants, it would produce an alert

that “there is something active in LEADS.”

        {¶ 9} Roach-Haver explained that “[u]sing the system for personal use or personal gain in

any manner would be considered misuse.” The OHLEG rules and regulations explicitly provide:

“Access to OHLEG is limited to use for official law enforcement/administration of criminal

justice purposes only, not for personal use or gain.” Roach-Haver further stated that a user is

allowed to conduct a self-search during a seven-day practice period and that after the seven-day

period, self-searches are not authorized. The OHLEG manual specifically states that a new user

is permitted “to run a self-search for a period of seven days from the date they receive their

access as a means of learning how to use the search engine tool.” The rule also provides that
ADAMS, 17CA1056                                                                                  5

“[a]ny self-searches run by a user beyond the seven day initial training period will be subject to

audit review and investigation as misuse.”

        {¶ 10} Roach-Haver explained that on July 30, 2015, at approximately 12:20 a.m.,

appellant accessed OHLEG and searched Brian Edwards’s social security number, then viewed

seven different records associated with Edwards.       She stated that on October 5, 2015, at

approximately 4:08 a.m., appellant searched a Carla Knipp who lives in Lawrence County.

Roach-Haver additionally detailed the other times appellant accessed OHLEG to search for

himself, James White, Joe Himes, Kristopher Blanton, Sarah Lowman, and David Rowe.

        {¶ 11} Jeremy Hansford testified that he is the Ohio State Highway Patrol data system

administrator who oversees the Ohio Criminal Justice Information Services, including LEADS.

Hansford explained that officers may access LEADS to obtain “driving information, criminal

history information, wants, warrants, stolen vehicles, missing people, * * * known suspected

terrorists, [and] fugitive felons.” He stated that LEADS contains national files, while OHLEG

contains only Ohio files.

        {¶ 12} Hansford related that an officer must be certified to use LEADS. He testified that

in October 2014, appellant passed the certification test. Hansford stated that the certification

test requires the user to know “what its permitted use is.” Hansford indicated that the LEADS

manual states that “LEADS can be used for the administration of criminal justice by authorized

criminal justice agencies” and defines “the administration of criminal justice” as “the

performance of any of the following activities: detection, apprehension, detention, pre-trial

release, post-trial release, prosecution, adjudication, correctional supervision, rehabilitation of

accused person or criminal offenders.”
[Cite as State v. Hayes, 2019-Ohio-257.]
        {¶ 13} The LEADS manual states that a user may “run inquiries as long as those * * *

inquiries are a legitimate part of the administration of criminal justice.” The manual indicates

that “[a]n officer on the street can request a record check on a driver stopped for a traffic

violation,” but “cannot * * * check a neighbor’s driving record.”

        {¶ 14} Hansford testified that when a user logs in to the LEADS mobile application, a red

warning banner advises the user that “[u]nauthorized use of the system is prohibited and may be

subject to criminal and civil penalties.” After log in, another screen appears that the user must

review and accept before continuing. It states: “I will conduct LEADS queries only for official

business or as part of my job assignment. I will not share LEADS query results outside of my

organization, including to the public.”    Additionally, appellant signed a “LEADS Security

Agreement” that recites appellant’s understanding that he “may use OHLEG/LEADS access for

[his] employment with the Manchester Police Department for Law Enforcement Investigative

purposes only.”

        {¶ 15} Carla Knipp testified that she and appellant dated until December 2015, and that

appellant is the father of her children. Knipp stated that on October 5, 2015 at 4:08 a.m., she

was not involved in any type of criminal investigation with appellant and that she had never been

a suspect in a crime. Knipp related that after appellant’s searches came to light, appellant

informed Knipp that he had searched her name because “he was calibrating the system.”

        {¶ 16} David Rowe testified that he dated Knipp, and that on the date appellant searched

him (April 4, 2016, at 10:01 a.m.), he had not been involved in any type of criminal investigation

with appellant. He further stated that he lived an hour and one-half away from Manchester and

had never been to Manchester until the date of his testimony.
ADAMS, 17CA1056                                                                                  7

        {¶ 17} On the third day of trial, the prosecutor advised the court that he had learned of a

potential ethics violation involving evidence that defense counsel wished to introduce. The

prosecutor stated that the evidence may be confidential under the Ohio Supreme Court Rules for

the Governance of the Bar. The prosecutor indicated that the evidence concerned Kris Blanton,

an assistant Adams County Prosecuting Attorney and former Village of Manchester Traffic Court

Magistrate. The prosecutor explained that when Blanton was a magistrate, he dismissed a

speeding ticket that appellant had issued to the Adams County Sheriff’s granddaughter, and

appellant believed Blanton acted improperly by dismissing the ticket. The prosecutor stated

that, although defense counsel could present evidence regarding the foregoing factual

circumstances, counsel could not delve into “the formal process that happened after those factual

allegations.”

        {¶ 18} Defense counsel, however, asked the court to continue the trial and explained:

                I believe that I’m put in an ethical situation at this point that I’ve already
        violated ethics and that if I continue I’m either stuck between representing my
        client or violating ethics. I don’t feel there is any way that an attorney can
        proceed without a conflict of interest at this point with what has been said and
        accused.

The prosecutor asserted that continuing the trial would not serve any purpose and that the court’s

options were to declare a mistrial or proceed with the jury trial.

        {¶ 19} The trial court observed that the parties had previously discussed the matter in

chambers and that the parties indicated that defense counsel may inquire into the circumstances

when cross-examining the Village of Manchester Chief of Police, Jeffrey Bowling. Appellant’s

counsel stated, “That’s correct, Your Honor.” The prosecutor stated, “as long as [the Chief of
ADAMS, 17CA1056                                                                              8

Police] doesn’t go into whether or not there was or wasn’t a grievance everything is okay.” The

court thus determined that neither a continuance nor a mistrial was warranted.

        {¶ 20} The state’s next witness, Brian Edwards, testified that he is one of appellant’s

friends, as well as a Manchester volunteer firefighter. Edwards stated that he had no law

enforcement interaction with appellant and, that on the dates appellant searched his name in

OHLEG and LEADS, appellant had not stopped Edwards to investigate any alleged criminal

conduct.    Edwards additionally related that he did not ask appellant to check his vehicle

registration or license plates.   Edwards explained that he did, however, ask appellant to

investigate whether Edwards had an outstanding warrant in the State of Kentucky, and, on

another occasion, asked appellant if Edwards had a warrant for failing to pay a judgment.

Edwards indicated that both times, appellant informed him that Edwards did not have any

warrants.

        {¶ 21} James White testified that he volunteers at the fire station and that one time,

appellant asked White if White “want[ed] to play a game.” White responded affirmatively, and

appellant told White to give appellant White’s social security number so that appellant could

check if White had any warrants. Appellant informed White that if the search revealed a

warrant, appellant would be “taking [White] in.”

        {¶ 22} Deanna Dryden testified that she works at a local bar and, although appellant

investigated a fight or two that she had reported at the bar, she had never been involved in a

traffic stop or other criminal investigation on the dates and times that appellant searched her

information in LEADS.
ADAMS, 17CA1056                                                                               9

        {¶ 23} Jeremy Upole stated that appellant responded to a report Upole made in July 2015,

but Upole had not been involved in any criminal investigation with appellant on the dates

appellant searched his information in LEADS.

        {¶ 24} Joe Himes, an emergency medical technician and volunteer firefighter, testified

that in April 2015 appellant informed Himes that his vehicle registration sticker had expired.

Himes stated that he did not, however, have any criminal interaction with appellant during the

other times appellant searched Himes’s information.

        {¶ 25} Sarah Lowman testified that she encountered appellant on May 29, 2016 while she

walked home from a bar.         Appellant stopped Lowman and her friend and asked for

identification. Lowman gave appellant her identification and social security number. A few

days later, Lowman and appellant developed a romantic relationship and remained in a

relationship until December 2016. Lowman indicated, however, that she had not been involved

in any law enforcement investigations when appellant searched her information on June 5, 2016.

        {¶ 26} Former Manchester Police Officer Jason Mallott testified that he and appellant

formerly lived together in a house owned by Cody Carter. Officer Mallott explained that when

employed with the Village of Manchester, he often ran vehicle tags if he had reasonable

suspicion to do so.    Officer Mallott additionally stated that OHLEG will show a “warrant

block,” which is a block on a driver’s license. Officer Mallott indicated that if he wanted to

know if someone had a warrant, however, he would use LEADS.

        {¶ 27} Jeffrey Bowling, the former Village of Manchester Chief of Police, testified that

appellant twice signed a form indicating that appellant understood OHLEG and LEADS access
ADAMS, 17CA1056                                                                                  10

were “for law enforcement purposes only.” Chief Bowling additionally explained that he never

instructed appellant to search anyone and specifically did not instruct appellant to search Blanton.

        {¶ 28} On cross-examination, defense counsel asked Chief Bowling whether a criminal

investigation of Blanton existed, and the chief responded negatively. Defense counsel asked if

the chief was “positive of that,” and the chief stated, “Uh-uh.” Chief Bowling further explained

that Blanton quit his position as magistrate because appellant “filed a complaint on him.”

        {¶ 29} Cody Carter testified that appellant was a former tenant and that he does not recall

being the subject of a law enforcement investigation.

        {¶ 30} Before the state presented its next witness, Blanton, defense counsel moved for a

mistrial or continuance and requested to withdraw from representing appellant due to a “potential

conflict.” In particular, defense counsel asserted that he could not present a complete defense

due to a potential ethics violation because appellant would testify that he searched Blanton’s

name to obtain his address to complete a disciplinary complaint regarding Blanton’s dismissal of

the speeding ticket. The prosecutor, however, argued that prohibiting defense counsel from

inquiring into any formal disciplinary complaint that appellant might have filed bore no

relevancy to the case. The prosecutor thus asserted that if appellant “is alleging that he ran

[Blanton’s name] for a legal investigation then who cares what happened [next].”                The

prosecutor claimed that appellant could present the factual circumstances of Blanton’s conduct

and could assert that appellant believed Blanton acted improperly, but could not argue or present

evidence that appellant might have filed a formal complaint with the disciplinary counsel.

        {¶ 31} At this juncture, the trial court asked defense counsel to explain the relevancy of

any formal complaint appellant may have filed. Defense counsel asserted that “it would add
ADAMS, 17CA1056                                                                                11

credence to [appellant’s] action, add credence to why he did the things he did.” Counsel

claimed that introducing evidence that appellant filed a formal complaint would allow counsel to

show that appellant’s use of OHLEG was proper, i.e., that appellant searched Blanton on

OHLEG in order to obtain information necessary to complete the complaint.

        {¶ 32} The prosecutor again reiterated that nothing prevented appellant from attesting to

appellant’s belief that Blanton acted improperly. The prosecutor explained:

                So nothing is handcuffing the defendant to present as much as he wants
        what [sic] his delusional belief that this was a law enforcement purpose and that
        instead of talking to the, I don’t know, 20 some thousand sworn officers in the
        State of Ohio, they are just going to send it to a few attorneys of the disciplinary
        counsel.

        {¶ 33} The trial court overruled appellant’s motions. Blanton then testified that, when

employed as the traffic court magistrate, he dismissed a ticket appellant had issued to the Adams

County Sheriff’s granddaughter. Blanton stated that a member of the granddaughter’s family

had approached him about the speeding ticket and that Blanton later dismissed the ticket.

Blanton further explained that dismissing a speeding ticket for a first-time offender who is a

young driver is not uncommon.

        {¶ 34} Special Agent David Hornyak testified that he investigated the OHLEG and

LEADS complaints against appellant to determine whether appellant possessed a proper purpose

to conduct the searches.      Agent Hornyak explained that to determine whether appellant

possessed a proper law enforcement purpose to conduct the searches, Agent Hornyak reviewed

appellant’s time sheets, official records and call logs and compared them to the OHLEG and

LEADS searches. Agent Hornyak stated that his investigation indicated that appellant had

conducted multiple searches that did not have a proper law enforcement purpose.
[Cite as State v. Hayes, 2019-Ohio-257.]
        {¶ 35} In his defense, appellant presented testimony from Annissa Grooms, the Village of

Manchester court clerk. Grooms stated that when Blanton served as the traffic court magistrate,

he dismissed a speeding ticket that appellant had issued. Grooms explained that appellant later

spoke to Grooms about the dismissal and asked her to complete a witness statement about the

dismissed the ticket. Grooms indicated that Blanton later resigned as a result of the speeding

ticket investigation.

        {¶ 36} Appellant also testified in his defense. He explained that he believed all of his

OHLEG and LEADS searches were for legitimate law enforcement purposes and offered the

following as reasons for his searches:

        1. Edwards asked appellant whether Edwards had a warrant.

        2. Appellant checked the status of Knipp’s license and registration due to financial

difficulties he and Knipp were experiencing.

        3. Appellant searched Carter’s information as “a status check on operating a vehicle” to

see if Carter’s license and registration were valid.

        4. Appellant searched White as a status check and because White asked appellant to do

so.

        5. Appellant checked Himes’s license and registration to investigate whether Himes was

on-duty at the time appellant viewed Himes’s vehicle in the fire station parking lot. Appellant

explained that he ran tags of cars parked at the fire station to help protect property–to ensure “it

was the right person that was supposed to be on duty that day.” Appellant stated that he

searched Himes another time after Himes’s supervisor requested a status check.
[Cite as State v. Hayes, 2019-Ohio-257.]
        6. Appellant performed self-searches while “calibrating the system,” i.e., testing whether

the wireless connection was working.

        7. Appellant searched Blanton “as part of an investigation that [appellant] conducted in

reference to possible criminal charges.”       Appellant explained that he believed Blanton

“[i]mproperly dismissed a ticket.”

        8. Appellant stated that he searched Lowman while following up on his paperwork

prepared as a result of the May 29, 2016 encounter.

        9. Appellant claimed that all of the other searches he conducted were completed while he

was on “[r]outine traffic patrol.” Appellant explained that he ran license plates “[e]very time

[he] drove by somebody.”

        {¶ 37} Appellant additionally claimed that he did not receive any OHLEG or LEADS

training before he gained access to the systems, and that until trial no one had shown him the

OHLEG training video.

        {¶ 38} On cross-examination, the prosecutor questioned appellant regarding his claim

that he searched Lowman as a follow-up to his earlier encounter with her. The prosecutor noted

that the reports introduced at trial indicated that appellant had cleared the scene on the night of

the encounter. Appellant, however, stated that the “narrative” he prepared of the encounter was

not documented in the evidence presented at trial.

        {¶ 39} The prosecutor additionally asked appellant what criminal conduct appellant

believed Blanton had engaged in by dismissing the speeding ticket, and appellant replied it

“would have to be up to the Supreme Court [of Ohio] Disciplinary Counsel.” Appellant further

claimed that he investigated Blanton pursuant to Chief Bowling’s and the mayor’s request.
ADAMS, 17CA1056                                                                                  14

        {¶ 40} Appellant also denied that he searched Carter’s name as a means of vetting him as

a landlord, even though appellant conducted the search near the time that he moved into Carter’s

property.

        {¶ 41} The prosecutor questioned appellant regarding his motivation for searching Knipp

and noted that Knipp testified that appellant searched her name because he was “calibrating the

system.” The prosecutor asked appellant whether Knipp was lying. Appellant responded, “Me

and [Knipp] hardly talk really, okay, I told [Knipp] what the situation was out of respect for

[her].” Appellant further claimed that he was allowed to run random searches.

        {¶ 42} After the close of evidence, appellant asked the trial court to give the jury an

instruction that conducting random license plate searches is not improper and instruct the jury

that “[a]n officer does not need probable cause to run a license plate” and that an officer can “run

random license plate searches.” The trial court declined appellant’s request.

        {¶ 43} During closing arguments, the prosecutor argued that the only elements the parties

dispute is whether appellant used OHLEG and LEADS beyond consent. The prosecutor asserted

that appellant had consent to use the systems for the administration of criminal justice, but that

appellant could not search an individual unless that person is suspected of a crime or involved in

a criminal investigation. The prosecutor therefore claimed that appellant did not have consent to

use OHLEG or LEADS to search his girlfriend, ex-girlfriend, landlord, or friends when none of

those individuals had been suspected of a crime or otherwise involved in a criminal investigation.

        {¶ 44} Defense counsel argued that the definition of “the administration of criminal

justice” does not require an individual to be a suspect and that appellant performed all of the

searches alleged to have violated R.C. 2913.04 as part of his duties to protect society.
[Cite as State v. Hayes, 2019-Ohio-257.]
        {¶ 45} During deliberations, the jury asked the court to clarify the elements that must be

met for each count. The court advised the jury that the elements consist of the following:

appellant knowingly gained access to, attempted to gain access to, caused access to be granted, or

disseminated information gained from access to OHLEG or LEADS without the consent of, or

beyond the scope of the express or implied consent of, the appropriate authority.

        {¶ 46} The jury subsequently found appellant guilty of forty OHLEG offenses as follows:

(1) all but one of the offenses involving Edwards; and (2) all of the offenses involving Knipp,

Carter, appellant’s self-searches, Blanton, Lowman, and Rowe. The jury found appellant not

guilty of the OHLEG offenses involving Himes. The jury found appellant guilty of five LEADS

offenses as follows: (1) one offense involving Edwards; (2) two offenses involving Dryden; (3)

one offense involving Upole; and (4) one offense involving appellant’s self-search. On October

17, 2017, the trial court sentenced appellant to serve three years of community control and one

hundred eighty days in jail. This appeal followed.

                                                  I

        {¶ 47} In his first assignment of error, appellant asserts that trial counsel did not provide

constitutionally effective assistance of counsel. In particular, appellant alleges that trial counsel

failed to raise the R.C. 2913.03(C) affirmative defenses and failed to request the trial court to

give the jury an affirmative defense instruction. Appellant claims that R.C. 2913.03(C) would

have provided him with a complete defense if the jury found either that (1) appellant, “though

mistaken, reasonably believed” that he possessed consent to conduct his OHLEG and LEADS

searches, or (2) appellant reasonably believed that the administrators of OHLEG and LEADS

would have authorized his searches. Thus, appellant contends, if trial counsel had requested an
ADAMS, 17CA1056                                                                                  16

affirmative defense instruction, a reasonable probability exists that the outcome of the trial would

have been different. Appellant notes that defense counsel did assert that appellant believed his

use of OHLEG and LEADS was for the administration of criminal justice or for a legitimate law

enforcement purpose, and appellant did testify that he believed he was authorized to conduct

random vehicle tag searches. Thus, appellant asserts that if trial counsel had requested the

affirmative defense jury instruction, a reasonable likelihood exists that the jury would have

acquitted appellant on all offenses, but especially the offenses that involved Edwards, Knipp,

Carter, Blanton, and himself.

                                                 A

        {¶ 48} 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. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); accord Hinton v. Alabama, 571 U.S. 263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014)

(explaining that the Sixth Amendment right to counsel means “that defendants are entitled to be

represented by an attorney who meets at least a minimal standard of competence”).

        {¶ 49} 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; State v. Myers, — Ohio St.3d —, 2018-Ohio-1903, — N.E.3d —, ¶ 183; State v. Powell,

132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85.             “Failure to establish either
ADAMS, 17CA1056                                                                                   17

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 ineffective-assistance-of-counsel elements “negates a court’s need to consider the other”).

                                                 1

        {¶ 50} 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.’” Padilla v.

Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466

U.S. at 688; accord Hinton, 571 U.S. at 273. Prevailing professional norms dictate that “a

lawyer must have ‘full authority to manage the conduct of the trial.’” 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, 98 L.Ed.2d 798 (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, 571 U.S. at 273, quoting Strickland,

466 U.S. at 688. 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).

        {¶ 51} 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.” Strickland, 466 U.S. at 689, 104

S.Ct. 2052. Thus, “the defendant must overcome the presumption that, under the circumstances,
ADAMS, 17CA1056                                                                               18

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; e.g., 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).

                                                2

        {¶ 52} 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.’” Hinton, 571 U.S.

at 275, quoting Strickland, 466 U.S. at 694; 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, ¶ 91 (indicating that prejudice 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, 571 U.S. at 275,

quoting Strickland, 466 U.S. at 695. Furthermore, courts ordinarily may not simply presume the

existence of prejudice but, instead, 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); see generally Roe v. Flores-Ortega, 528 U.S. 470,
ADAMS, 17CA1056                                                                                   19

483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2008) (observing that prejudice may be presumed in

limited contexts, none of which are relevant to appellant’s first assignment of error). As we

have repeatedly recognized, speculation is insufficient to establish the prejudice component of an

ineffective assistance of counsel claim. E.g., State v. Tabor, 4th Dist. Jackson No. 16CA9,

2017-Ohio-8656, 2017 WL 5641282, ¶ 34; State v. Jenkins, 4th Dist. Ross No. 13CA3413,

2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 25;

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

Athens No. 08CA24, 2009-Ohio-6191, ¶ 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).

        {¶ 53} In the case at bar, as we explain below, we do not believe that a reasonable

probability exists that the outcome of appellant’s trial would have been different but for trial

counsel’s alleged deficiency in failing to request an affirmative defense instruction.

                                                    B

        {¶ 54} Appellant claims that trial counsel performed ineffectively by failing to request the

court to give the jury an R.C. 2913.03(C) affirmative-defense instruction.

        {¶ 55} Generally, a trial court has broad discretion to decide how to fashion jury

instructions. The trial court must not, however, fail to “fully and completely give the jury all

instructions which are relevant and necessary for the jury to weigh the evidence and discharge its

duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph

two of the syllabus. Additionally, a trial court may not omit a requested instruction, if such

instruction is “‘a correct, pertinent statement of the law and [is] appropriate to the facts * * *.’”
ADAMS, 17CA1056                                                                                                                             20

State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993), quoting State v. Nelson, 36 Ohio

St.2d 79, 303 N.E.2d 865 (1973), paragraph one of the syllabus. Furthermore, a trial court need

not provide an affirmative-defense jury instruction unless the defendant introduces “sufficient

evidence, which, if believed, would raise a question in the minds of reasonable [factfinders]

concerning the existence of such issue.” State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195

(1978), paragraph one of the syllabus; R.C. 2901.05(A).                                      “Evidence is sufficient where a

reasonable doubt of guilt has arisen based upon [the affirmative defense].” Id. at 20. “If the

evidence generates only a mere speculation or possible doubt, such evidence is insufficient to

raise the affirmative defense, and submission of the issue to the jury will be unwarranted.” Id.

Thus, “[a]s a matter of law the trial court cannot give a jury instruction on an affirmative defense

if a defendant fails to meet this burden.”                            State v. Schwendeman, 4th Dist. No. 17CA7,

2018-Ohio-240, 104 N.E.3d 44, 2018 WL 509351, ¶ 19.

           {¶ 56} R.C. 2913.03(C) sets forth two affirmative defenses to a charge under R.C.

2913.04(C) or (D)2:

                  (1) At the time of the alleged offense, the actor, though mistaken,
           reasonably believed that the actor was authorized to use or operate the property.
                  (2) At the time of the alleged offense, the actor reasonably believed that
           the owner or person empowered to give consent would authorize the actor to use
           or operate the property.

           {¶ 57} Appellant claims that he presented sufficient evidence at trial to support a finding

that he reasonably believed that his use of OHLEG and LEADS was authorized. Appellant thus

alleges that trial counsel acted deficiently by failing to request an affirmative-defense instruction.

           2
             R.C. 2913.04(E) states that “[t]he affirmative defenses contained in division (C) of section 2913.03 of the Revised Code are
affirmative defenses to a charge under this section.”
ADAMS, 17CA1056                                                                                   21

 He further argues that if counsel had requested the instruction, the trial court would have been

obligated to so instruct the jury. Appellant thus contends that if the court had given the jury the

affirmative-defense instruction, a reasonable probability exists that the jury would have found

him not guilty. We do not agree.

        {¶ 58} R.C. 2913.04(C) and (D) define the offenses as charged in appellant’s indictment

as follows:

                (C) Except as permitted under section 5503.101 of the Revised Code, no
        person shall knowingly gain access to, attempt to gain access to, cause access to
        be granted to, or disseminate information gained from access to the law
        enforcement automated database system created pursuant to section 5503.10 of
        the Revised Code without the consent of, or beyond the scope of the express or
        implied consent of, the chair of the law enforcement automated data system
        steering committee.
                (D) No person shall knowingly gain access to, attempt to gain access to,
        cause access to be granted to, or disseminate information gained from access to
        the Ohio law enforcement gateway established and operated pursuant to division
        (C)(1) of section 109.57 of the Revised Code without the consent of, or beyond
        the scope of the express or implied consent of, the superintendent of the bureau of
        criminal identification and investigation.

        {¶ 59} At trial, the state presented evidence that appellant had consent to use OHLEG and

LEADS for the administration of criminal justice only.          The state introduced evidence to

illustrate that the “administration of criminal justice” means “the detection, apprehension,

detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision,

or rehabilitation of accused persons or criminal offenders.”                 Ohio Admin. Code

4501:2-10-01(A).

        {¶ 60} Appellant claims that a reasonable probability exists that an affirmative-defense

instruction would have led the jury to conclude that he reasonably believed that his use of

OHLEG and LEADS was for the administration of criminal justice.                We do not believe,
ADAMS, 17CA1056                                                                                                  22

however, that the evidence presented at trial sufficiently established that appellant possessed a

reasonable belief that his use of OHLEG and LEADS was within the scope of consent. Instead,

as we explain below, “the evidence generates only a mere speculation or possible doubt,” which

“is insufficient to raise the affirmative defense.” Melchior, 56 Ohio St.2d at 20. Thus, even if

trial counsel had requested the court to give the jury the affirmative-defense instruction, the

instruction would not have been warranted. 3 Although appellant argues that he was simply

mistaken in his belief that his use was for the administration of criminal justice, the evidence

does not suggest that appellant’s mistaken belief was a reasonable belief. Instead: (1) the

evidence plainly documents the improper use of OHLEG and LEADS further shows that

appellant signed forms to indicate that he understood the proper uses; (2) each time appellant

logged in to OHLEG, he had to agree to three separate statements to indicate that he understood

the proper use of OHLEG; (3) a similar warning accompanied each LEADS log-ins; and (4) none

of the uses authorized appellant to search a girlfriend, an ex-girlfriend,                     an ex-girlfriend’s

paramour, a barmaid, an assistant prosecutor and traffic court magistrate, a landlord, friends,

acquaintances or one’s self in the absence of a criminal justice purpose. Indeed, the OHLEG

rules and regulations admitted at trial, which bear appellant’s signature of the cover page,

specifically warn that self-searches are not authorized beyond the initial seven-day training

period.




3
  We observe that “[q]uestionable trial strategies and tactics [ordinarily] do not rise to the level of ineffective
assistance of counsel.” State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 18, citing State
v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). Moreover, “[s]imply because there [may be] ‘another
and better strategy available’ [does] not mean that counsel provided ineffective assistance.” Id. at ¶ 19, quoting
Clayton, 62 Ohio St.2d at 48–49.
[Cite as State v. Hayes, 2019-Ohio-257.]
        {¶ 61} While appellant claims that in his view each search he performed involved a

criminal justice or law enforcement purpose, the evidence instead overwhelmingly reveals that

appellant’s belief is not simply unreasonable, but is, in fact, absurd. Appellant apparently

asserts that because he served as a law enforcement officer, any search he undertook, regardless

of the nature, scope, purpose or reason, and whether for personal amusement, curiosity,

knowledge or benefit, was permitted. Clearly, the evidence adduced at trial does not support

appellant’s view that he searched Edwards, Blanton, Knipp, Carter, White, or himself for a

purpose related to the “detection, apprehension, detention, pretrial release, post-trial release,

prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or

criminal offenders.” None of this evidence adduced at trial indicates that any of the individuals

appellant searched were “accused persons or criminal offenders,” or that appellant reasonably

believed his searches were necessary to detect an accused person or criminal offender. Instead,

appellant testified that he believed he could simply run random searches. However, the jury’s

guilty verdicts show that it considered, but discredited, appellant’s testimony and argument that

he conducted all searches for a law enforcement purpose and, instead, found his use of OHLEG

and LEADS improper.

        {¶ 62} In sum, the evidence shows that although appellant acknowledged the proper uses

of OHLEG and LEADS each time he logged in, the individuals appellant searched did not

involve an accused person or a criminal offender, or were connected in any manner whatsoever

to the detection or apprehension of such a person. Thus, even if trial counsel had requested an

affirmative-defense instruction, appellant did not present sufficient evidence to warrant the

instruction.    Also, it is not reasonably probable that the jury would have determined that
ADAMS, 17CA1056                                                                                 24

appellant’s absurd belief that he conducted searches for the administration of criminal justice

and, although mistaken, was reasonable. Once again, we believe that even if the evidence

warranted an affirmative-defense instruction, we do not find it reasonably probable that the jury

would have determined that appellant’s belief that his searches were for the administration of

criminal justice, though mistaken, was reasonable. For similar reasons, we do not find that a

reasonable probability exists that the outcome of the trial would have been different if the court

had given a R.C. 2913.03(C)(2) affirmative defense instruction.

        {¶ 63} We therefore do not find a reasonable probability exists that the outcome of

appellant’s trial would have been different if the trial court had given the jury the R.C.

2913.03(C) affirmative defense instructions. See State v. Dayton, 3rd Dist. Union No. 14-17-03,

2018-Ohio-3003, 2018 WL 3621774, ¶ 114-124 (determining that trial counsel not ineffective for

failing to request accomplice jury instruction when no reasonable probability that jury would

have reached different verdict; also concluding that court’s failure to provide accomplice jury

instruction harmless error and would not amount to plain error); State v. Sherrell, 5th Dist. Stark

No. 2015CA00086, 2016-Ohio-1177, 2016 WL 1110256, ¶ 33 (concluding that trial counsel not

ineffective for failing to request defense-of-property jury instruction when evidence did not

adequately show defendant reasonably believed imminent threat to property existed); see

generally Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)

(concluding error in jury instructions harmless when “beyond cavil” that error did not contribute

to verdict); State v. Wilks, — Ohio St.3d —, 2018-Ohio-1562, — N.E.3d —, ¶ 130 (determining

that plain-error doctrine applies to alleged error in failing to correctly instruct jury); State v.

Crawford, 8th Dist. No. 104055, 2016-Ohio-7779, 73 N.E.3d 1110, 2016 WL 6805055, ¶¶ 16-19
ADAMS, 17CA1056                                                                                  25

(concluding that plain error did not occur due to absence of “accident” instruction when court

properly instructed jury on elements of offenses); State v. Hess, 4th Dist. No. 13CA15,

2014-Ohio-3193, 17 N.E.3d 15, 2014 WL 3565978, ¶ 29 (observing that court’s failure to give

jury not-guilty-by-reason-of-insanity instruction not plain error when evidence did not warrant

instruction); State v. Hubbard, 10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, 2013 WL

3341171, ¶ 61 (determining that defendant could not establish prejudice resulted from lack of

“accident” jury instruction when court’s general charge defined mental states, “knowingly” and

“purposefully,” in manner that would have allowed jury to acquit if jury credited defendant’s

claim of accident); State v. Griffin, 6th Dist. Lucas No. L-11-1283, 2013-Ohio-411, 2013 WL

494023, ¶¶ 37-39 (determining that trial counsel was not ineffective for failing to request a

mistake-of-fact instruction when under court’s general charge jury should have acquitted

defendant if he acted without purpose or had a reasonable justification or excuse for committing

offense); State v. Chambers, 4th Dist. Adams No. 10CA902, 2011-Ohio-4352, 2011 WL

3841961, ¶ 48 (stating that “court’s knowingly instruction adequately conveyed to the jury the

requisite mental state, and had the jury believed appellant’s claimed accident theory at trial, it

could not have found that he acted knowingly” and finding “no danger that the jury wrongly

convicted appellant due to the absence of an accident instruction”); State v. Mathias, 10th Dist.

Franklin No. 06AP-1228, 2007-Ohio-6543, 2007 WL 4285107, ¶¶ 20-22 (concluding that

prejudicial error did not occur due to absence of “mistake of fact” instruction in theft prosecution

when court’s general charge defined mental states of “knowingly” and “purposefully”); see also

State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, 2015 WL 687461, ¶¶ 56-62

(determining that plain error did not result from lack of “mistake-of-fact” instruction in
ADAMS, 17CA1056                                                                                      26

officer-involved shooting trial); State v. Sneed, 63 Ohio St.3d 3, 10, 584 N.E.2d 1160 (1992)

(stating that prejudicial error does not occur “when the substance of the requested instruction was

already included in the court’s general charge).

        {¶ 64} Accordingly, based upon the foregoing reasons, we overrule appellant’s first

assignment of error.

                                                   II

        {¶ 65} In his second assignment of error, appellant asserts that his R.C. 2913.04(C) and

(D) convictions violate his due process rights. In particular, appellant claims that the statutory

provisions are unconstitutionally vague because they do not fairly inform an individual of the

proscribed conduct. Appellant recognizes, however, that trial counsel did not object to the

statute on vagueness grounds and that he must argue plain error on appeal.

        {¶ 66} Trial counsel’s failure to raise the constitutionality of R.C. 2913.04 during the trial

court proceedings results in the forfeiture of the argument for purposes of appeal. E.g., State v.

Anderson, 151 Ohio St.3d 212, 2017-Ohio-5656, 87 N.E.3d 1203, ¶ 44 (noting that failure to

raise issue during lower court proceedings forfeits “right to present it for the first time” on appeal

to supreme court); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 190

(noting that raising issue “for the first time in the court of appeals” forfeits “all but plain error”).

Consequently, we may review this issue only for plain error.

        {¶ 67} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” Crim.R. 52(B)

thus permits a court to recognize plain error if the party claiming error establishes (1) that “‘an

error, i.e., a deviation from a legal rule’” occurred, (2) that the error is a plain or “‘an “obvious”
ADAMS, 17CA1056                                                                                       27

defect in the trial proceedings,’” and (3) that this obvious error affected substantial rights, i.e., the

error “‘must have affected the outcome of the trial.’” State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (2002); accord State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶

32–33. For an error to be “plain” or “obvious,” the error must be plain “under current law” “at

the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 467, 468, 117

S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord Henderson v. United States, 568 U.S. 266, 279, 133

S.Ct. 1121, 185 L.Ed.2d 85 (2013); Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240, citing United

States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that for error

to be plain, it must be obvious error under current law); State v. G.C., 10th Dist. Franklin No.

15AP-536, 2016-Ohio-717, 2016 WL 764409, ¶ 14. Even when, however, a defendant

demonstrates that a plain error or defect affected his substantial rights, the Ohio Supreme Court

has “‘admonish[ed] courts to notice plain error “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.”’” Rogers at ¶ 23, quoting

Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus.

        {¶ 68} After our review in the case sub judice, we do not believe that the trial court

committed plain error. Courts have rejected vagueness challenges to R.C. 2913.04(C) and (D).

State v. Garn, 5th Dist. No. 16CA26, 2017-Ohio-2969, 91 N.E.3d 109, 2017 WL 2265533,

appeal not allowed, 152 Ohio St.3d 1406, 2018-Ohio-723, 92 N.E.3d 878; State v. Johnson, 8th

Dist. Cuyahoga No. 59190, 1992 WL 25312. In Garn, the court explained its reasoning for

concluding that R.C. 2913.04(C) is not void for vagueness:
ADAMS, 17CA1056                                                                                     28

          Appellant, a law enforcement officer, could and should have understood his duties
          and responsibilities with regard to utilizing the LEADS system for legitimate law
          enforcement purposes. Appellant knew or should have known the acts which
          would be against the expressed or implied consent of the law enforcement
          automated data system steering committee and/or the superintendent of the bureau
          of criminal identification and investigation. The evidence demonstrates
          Appellant was LEADS certified, and successfully completed retesting, scoring
          high averages. The Ohio Administrative Code sections cited by the trial court
          herein provide adequate notice of what Appellant is required to do or prohibited to
          do under the statute.

Id. at ¶ 17. Consequently, based upon the foregoing authority, we do not believe that the trial

court plainly erred by failing to conclude that appellant’s convictions violated his due process

rights.

          {¶ 69} Accordingly, based upon the foregoing reasons, we overrule appellant’s second

assignment of error.

                                                   III

          {¶ 70} In his third assignment of error, appellant asserts that the trial court’s decision to

deny appellant’s motion to continue required defense counsel to “either provide a complete

defense for his client and risk disciplinary action or decline to raise that defense for the client in

order to protect himself.” Appellant claims that defense counsel’s conflict between counsel’s

own interest in avoiding a possible ethics violation and appellant’s defense left him unable to

provide constitutionally effective assistance of counsel and that counsel’s conflict of interest

justifies a presumption of ineffectiveness.

          {¶ 71} Within this assignment of error, appellant also claims that the trial court denial of

trial counsel’s request for a continuance constitutes an abuse of discretion.

                                                   A
ADAMS, 17CA1056                                                                                   29

          {¶ 72} In most cases, a defendant’s failure to satisfy either part of the test set forth in

Strickland (deficient performance plus prejudice) is fatal to an ineffective assistance claim.

Madrigal, 87 Ohio St.3d at 389; State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968,

¶ 14. The United States Supreme Court, however, crafted a narrow exception to the general rule

that a defendant must prove that counsel’s deficient performance prejudiced the outcome of the

proceedings. Florida v. Nixon, 543 U.S. 175, 190, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004);

United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the

Court “recognized that some circumstances are so likely to prejudice the defendant that no

showing of prejudice is necessary.” State v. Sanders, 92 Ohio St.3d 245, 277, 750 N.E.2d 90

(2001).

          These include “the complete denial of counsel * * * at a critical stage of [the]
          trial” and the complete failure of counsel “to subject the prosecution’s case to
          meaningful adversarial testing.” [Cronic,] 466 U.S. at 659, 104 S.Ct. at 2047, 80
          L.Ed.2d at 668. “Ineffectiveness is also presumed when counsel ‘actively
          represented conflicting interests.’” Id. at 661, 104 S.Ct. at 2048, 80 L.Ed.2d at
          669, fn. 28, quoting Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 100 S.Ct. 1708,
          1719, 64 L.Ed.2d 333, 347. Also included are such extreme cases as Powell v.
          Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, where defense counsel
          was appointed only a few minutes before the trial commenced. See Cronic, 466
          U.S. at 659–661, 104 S.Ct. at 2047–2048, 80 L.Ed.2d at 668–669 (discussing
          Powell).
                  “Apart from circumstances of that magnitude, however, there is generally
          no basis for finding a Sixth Amendment violation unless the accused can show
          how specific errors of counsel undermined the reliability of the finding of guilt.”
          Cronic, 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668, fn. 26.

Sanders, 92 Ohio St.3d at 277.

          {¶ 73} In the case at bar, we do not believe that the circumstances are of such a

magnitude that we must presume prejudice.            Trial counsel presented all of the facts and

circumstances surrounding appellant’s belief that Blanton’s dismissal of the speeding ticket
ADAMS, 17CA1056                                                                                   30

constituted misconduct. The only fact that counsel did not present concerned a confidential

matter that appellant allegedly initiated a Disciplinary Counsel complaint that alleged

misconduct. Thus, even if counsel labored under a conflict between a possible ethical violation

and the presentation of evidence to support appellant’s case, that conflict had no bearing on

counsel’s performance or the trial. Instead, counsel subjected the state’s case to meaningful

adversarial testing.   Counsel also presented evidence that appellant believed that Blanton

improperly dismissed the ticket and that appellant believed Blanton’s impropriety warranted an

OHLEG search. Despite counsel’s inability to refer to any potential disciplinary proceedings

that appellant sought to institute, counsel still presented evidence that appellant believed that his

conduct was justified. We therefore do not believe that the case at bar is one of those narrow

circumstances that demand a presumption of prejudice.

                                                 B

        {¶ 74} To the extent appellant also argues that the trial court also erred by denying his

motion to continue, we point out that the Appellate Rules require each assignment of error to be

presented separately. Also, App.R. 12(A)(2) allows a court to “disregard an assignment of error

presented for review if the party raising it * * * fails to argue the assignment separately in the

brief, as required under App. R. 16(A).” Moreover, App.R. 16(A)(3) requires an appellant’s

brief to include “[a] statement of the assignments of error presented for review, with reference to

the place in the record where each error is reflected.” We further note that appellate courts

determine an appeal “on its merits on the assignment of error[s]” and not on “mere arguments.”

App.R. 12(A)(1)(b); State v. Johnson, 4th Dist. Scioto No. 17CA3814, 2018-Ohio-4516, 2018

WL 5892659, ¶ 8; State v. Ross, 4th Dist. No. 16CA3771, 2017-Ohio-9400, 103 N.E.3d 81, ¶ 53.
[Cite as State v. Hayes, 2019-Ohio-257.]
        {¶ 75} In the case at bar, appellant did not raise the issue of the trial court’s decision to

deny his motion to continue as a separate assignment of error. We therefore will disregard the

argument. Moreover, we further point out that the record contains nothing to suggest that the

court abused its discretion by denying appellant’s motion to continue.

        {¶ 76} Accordingly, based upon the foregoing reasons, we overrule appellant’s third

assignment of error and affirm the trial court’s judgment.

                                                                         JUDGMENT AFFIRMED.
[Cite as State v. Hayes, 2019-Ohio-257.]
                                           JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellee recover of 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 Adams 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 that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

        Harsha, J. & Hoover, J.: Concur in Judgment & Opinion

                                                For the Court



                                               BY:
                    Peter B. Abele, Presiding Judge




                                           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.
