[Cite as State v. Rutledge, 2019-Ohio-3460.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                        :

                 Plaintiff-Appellee,                  :               No. 17AP-590
                                                                   (C.P.C. No. 16CR-2072)
v.                                                    :
                                                                 (REGULAR CALENDAR)
Lincoln S. Rutledge,                                  :

                 Defendant-Appellant.                 :



                                               D E C I S I O N

                                     Rendered on August 27, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee. Argued: Steven L. Taylor.

                 On brief: Timothy Young, Ohio Public Defender, Stephen P.
                 Hardwick, and Allen Vender, for appellant. Argued:
                 Stephen P. Hardwick.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Lincoln S. Rutledge, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of
aggravated murder, felonious assault, attempted murder, and aggravated arson. For the
following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} By indictment filed June 7, 2016, plaintiff-appellee, State of Ohio, charged
Rutledge with one count of aggravated arson in violation of R.C. 2909.02, a second-degree
felony; one count of aggravated murder in violation of R.C. 2903.01, an unclassified felony;
one count of aggravated murder of a police officer in violation of R.C. 2903.01(E), an
unclassified felony; four counts of attempted murder in violation of R.C. 2923.02 and
No. 17AP-590                                                                                 2


2903.02, first-degree felonies; and four counts of felonious assault in violation of R.C.
2903.11, first-degree felonies. The indictment also contained capital specifications for
killing a law enforcement officer, killing during a course of conduct involving the purposeful
killing or attempt to kill two or more persons, and killing for the purpose of escaping
detection, apprehension, trial, or punishment for aggravated arson. Additionally, all of the
counts except aggravated arson included a 7-year specification for discharging a firearm at
a peace officer and a 3-year specification for the use of a firearm. The charges related to the
shooting death of Steven M. Smith, a SWAT officer with the Columbus Police Department,
as well as the attempted murder of four other police officers. Rutledge entered a plea of not
guilty.
          {¶ 3} At the trial beginning June 2, 2017, the evidence indicated that on April 8,
2016, Rutledge's wife, Jennifer Young, informed Rutledge that he could come to her home
that weekend to pick up some of his items. Rutledge and Young were separated at the time,
and she was out of town but had friends house sitting for her who would be able to give
Rutledge access to the house. Rutledge replied by email, demanding that she give him
money, and writing:
                 If you back me into a corner where it's my life or your bullshit,
                 what choice do you think I will have to make? There is no
                 choice. I have to survive. I'll get what's mine with a fountain
                 pen or gun. You can take that to heart. There is nowhere for
                 you to hide.

(Tr. at 1293.)
          {¶ 4} After receiving Rutledge's threatening email, Young called her house sitters
and asked them to leave her house and take her dog to another location. The house sitters
left Young's house on the morning of April 9, 2016 and locked the house. Rutledge arrived
at Young's house after the house sitters had left, and surveillance video from a nearby
parked car showed Rutledge go around to the back of the house. One of Young's neighbors
also saw Rutledge at the back of Young's house. The surveillance video then showed
Rutledge drive away, and, approximately 28 minutes later, it showed smoke coming from
Young's home. Firefighters arrived on the scene to extinguish the fire. A subsequent
investigation found the fire was purposely set with the aid of an ignitable liquid, and
investigators noted an odor of gasoline in the bedroom.
No. 17AP-590                                                                               3


       {¶ 5} That same day, fire investigators were able to review the surveillance video
from the nearby parked vehicle. The video led police to obtain an arrest warrant for
Rutledge at 10:34 p.m. and a search warrant for his residence at 11:15 p.m.
       {¶ 6} SWAT officers from the Columbus Police Department were waiting at
Rutledge's address, 14 West California, to execute the warrants. The officers knocked
loudly and announced their presence as police. The officers continued to knock for at least
20 minutes. Although Rutledge did not respond to the knocking at his door, the SWAT
officers surrounding the residence could see the silhouette of someone moving inside
turning off a light and attempting to hide.
       {¶ 7} The SWAT officers determined that it was a barricade situation and called for
all SWAT officers to report to the scene. Police used a loudspeaker system from one of their
vehicles to advise Rutledge that they were the Columbus Police and were outside his home.
Further, police advised Rutledge that they were not going to hurt him and that they wanted
him to come outside peacefully. As part of their announcement over the loudspeaker, police
repeatedly stated "There is a warrant for your arrest. You need to exit the premises
immediately." (Tr. at 1567.) A neighbor in an adjacent building testified he could hear the
repeated police announcements. In the darkness of the apartment, police could see that
Rutledge was flickering a lighter.
       {¶ 8} While the SWAT officers were outside repeatedly asking for Rutledge to
surrender, Rutledge was located in the back bedroom of his apartment. Officer Dennis
Prestel and Officer Troy Palmer were able to gain access to the basement directly
underneath the back bedroom of Rutledge's apartment. The SWAT officers decided to turn
off the electricity to the apartment through the circuit breaker box in the basement and
were communicating their plan through their police radios when Rutledge fired a gun down
through the floor in the direction where the officers were located. The bullet grazed Officer
Palmer's ballistic vest. Officers Prestel and Palmer could see the dust settle from the shot
directly above them.
       {¶ 9} The SWAT officers decided to breach the front door of Rutledge's residence,
and they did so by ramming it open. Officer Charles Distelhorst and Officer Tim O'Donnell
took positions at the breached front door and repeatedly yelled "Columbus police, SWAT.
We are outside. We are not leaving. We have a warrant for your arrest. You need to make
No. 17AP-590                                                                                4


yourself known inside the house." (Tr. at 1864.) Rutledge responded by saying "I'm not
coming out. Stay out of my house. Do not come in here." (Tr. at 1865-66.)
       {¶ 10} Minutes after those announcements, Rutledge began firing a number of
gunshots at the group of officers by putting his arm around the corner of the bedroom
doorway and firing his weapon, a mid-sized black handgun. As he fired these four or five
shots, Rutledge was screaming "Get the fuck out of my house." (Tr. at 1948.)
       {¶ 11} Officer Distelhorst then yelled at Rutledge to "[q]uit shooting," telling him he
was "making this way worse than it has to be." (Tr. at 1948.) Rutledge told the officers he
was invoking the Castle doctrine, and Officer Distelhorst tried to explain to Rutledge that
the Castle doctrine would not apply to his current situation since the officers had a warrant
for his arrest. Officer Distelhorst repeatedly pleaded with Rutledge to put down his gun
and show his hands to be taken into custody. Rutledge responded by saying, "You fucking
pussy, why don't you come in here and get me?" (Tr. at 1965.)
       {¶ 12} As the stand-off continued, police sent two robots through the front door to
assess the situation. Rutledge fired shots at the robots and disabled both of them. The
SWAT officers then introduced tear gas and knee-knockers through the back bedroom
window, but Rutledge still did not surrender.
       {¶ 13} Eventually, the SWAT officers decided to use a camera to attempt to see into
the back bedroom. The officers used a "Bearcat" armored vehicle, planning to drive it as
close as possible to the back bedroom window. Officer Enoch White was driving the vehicle,
and Officer Smith was positioned atop the vehicle, standing upright through a turret and
using the opened hatch to provide partial cover. Officer Smith had his rifle in order to
provide cover for the officers who were on foot. The officers planned for Officer David
Thivener to use a pole to clear out the glass and blinds still obscuring the window, at which
point Sergeant Scott Bray was to extend the camera on a pole through the window.
       {¶ 14} When Officer Thivener began to use the pole to clear out the window,
Rutledge fired his gun between five to ten times and was screaming, "Come and get me, you
fucking pussies." (Tr. at 1664.) From his vantage point inside the armored vehicle, Officer
White could see the muzzle flashes from Rutledge's gun being fired methodically from a low
position in the bedroom, aimed toward the armored vehicle. Officer White could hear shots
hit the armored vehicle, including the windshield where he was positioned, and then
No. 17AP-590                                                                                5


another shot hit Officer Smith in the head. After realizing Officer Smith had been shot,
Officer Thivener came around to the back of the armored vehicle to drag Officer Smith away
to a location where he could receive medical treatment. Officer Smith was transported to a
hospital where he died from the gunshot wound to his head.
       {¶ 15} Based on the pattern of bullet shots on the armored vehicle, Officer White
thought the shot marks were consistent with Rutledge "walking up" the shots by taking an
initial shot and subsequently adjusting his aim until reaching the top of the vehicle where
Smith was exposed. Officer White explained that "walking up" is a targeting method known
to people familiar with weapons. (Tr. at 2036.)
       {¶ 16} The standoff continued for several more hours, and Rutledge fired off
occasional gunshots during that time. Officer Thivener attempted to return fire at Rutledge
several times and hit him in the arm, but Rutledge still did not surrender. Eventually, a fire
ignited inside the apartment but Rutledge still refused to surrender to police. Ultimately,
after 7:00 a.m. on April 10, 2016, the SWAT officers set off a charge on a window to the
bathroom, where Rutledge was lying in the bathtub, at which point Rutledge surrendered
and stated, "I'm done." (Tr. at 1934.)
       {¶ 17} Following deliberations, the jury returned guilty verdicts on all counts and
accompanying specifications of aggravated murder. The jury additionally returned guilty
verdicts on the felonious assault and attempted murder charges that related to Officers
Thivener and White. The jury returned not-guilty verdicts on the attempted murder
charges that related to Officers Prestel and Palmer, but the jury found Rutledge guilty of
the felonious assault charges related to these two officers. Additionally, the jury convicted
Rutledge of the accompanying firearm specifications attached to each of his convictions.
       {¶ 18} The case then proceeded to the penalty phase. After the jury could not reach
a unanimous decision as to whether to authorize a death sentence, the jury recommended
a sentence of life without parole. Following a July 18, 2017 sentencing hearing, the trial
court imposed an aggregate sentence of life without parole plus 66 years in prison.
Rutledge timely appeals.
No. 17AP-590                                                                                6


II. Assignments of Error
      {¶ 19} Rutledge assigns the following error for our review:
              [1.] The trial court abused its discretion when it denied Mr.
              Rutledge's request for an instruction on the lesser-included
              offense of reckless homicide.

              [2.] The trial court erred when it instructed the jury that it was
              not allowed to consider evidence of mental illness in relation to
              Lincoln's mental state.

              [3.] Trial counsel was ineffective for failing to proffer specific
              mental health diagnoses at the trial phase.

              [4.] In response to a juror question, the trial court abused its
              discretion by incorrectly lowering the State's burden to prove
              that Lincoln Rutledge knowingly caused or attempted to cause
              physical harm to officers Prestel and Palmer.

III. First Assignment of Error – Lesser-Included Offense
       {¶ 20} In his first assignment of error, Rutledge argues the trial court erred in
refusing to instruct the jury on the lesser-included offense of reckless homicide in regard to
the aggravated murder charges.
       {¶ 21} This court reviews a trial court's refusal to instruct the jury on a lesser-
included offense under the abuse of discretion standard. State v. Coleman-Muse, 10th Dist.
No. 15AP-566, 2016-Ohio-5636, ¶ 8; State v. Parnell, 10th Dist. No. 11AP-257, 2011-Ohio-
6564, ¶ 21-27. The term "abuse of discretion" connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
State v. Clark, 71 Ohio St.3d 466, 470 (1994); Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
       {¶ 22} Here, the indictment charged Rutledge with one count of aggravated murder
and one count of aggravated murder of a law enforcement officer. Aggravated murder, as
defined in R.C. 2903.01(A) provides in part "[n]o person shall purposely, with prior
calculation and design, cause the death of another." Similarly, aggravated murder of a law
enforcement officer, as defined in R.C. 2903.01(E), provides "[n]o person shall purposely
cause the death of a law enforcement officer whom the offender knows or has reasonable
cause to know is a law enforcement officer" when either "[t]he victim, at the time of the
No. 17AP-590                                                                                  7


commission of the offense, is engaged in the victim's duties," or "[i]t is the offender's
specific purpose to kill a law enforcement officer." The trial court instructed the jury on the
lesser-included offense of felony murder based on Rutledge proximately causing Smith's
death as a result of committing felonious assault. As defined in R.C. 2903.02(B), the
offense of felony murder provides "[n]o person shall cause the death of another as a
proximate result of the offender's committing or attempting to commit an offense of
violence that is a felony of the first or second degree."
       {¶ 23} Despite the trial court's instruction on the lesser-included offense of felony
murder, the jury returned guilty verdicts on both of the aggravated murder charges and
accompanying specifications. Nonetheless, Rutledge argues the trial court erred when it
did not instruct the jury on the additional lesser-included offense of reckless homicide.
Pursuant to R.C. 2903.041, the offense of reckless homicide provides "[n]o person shall
recklessly cause the death of another." In turn, R.C. 2901.22(C) provides "[a] person acts
recklessly when, with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that the person's conduct is likely to cause a certain result
or is likely to be of a certain nature."
       {¶ 24} The state concedes, and we agree, that reckless homicide is a lesser-included
offense of aggravated felony murder. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-
2961, ¶ 190 ("reckless homicide is a lesser included offense of aggravated felony murder");
State v. Anderson, 12th Dist. No. CA2005-06-156, 2006-Ohio-2714, ¶ 9 ("[r]eckless
homicide is a lesser included offense of aggravated murder"). However, an instruction on
a lesser-included offense is required only when the evidence presented at trial would
reasonably support both an acquittal on the crime charged and a conviction on the lesser-
included offense. State v. Anderson, 10th Dist. No. 06AP-174, 2006-Ohio-6152, ¶ 39, citing
State v. Carter, 89 Ohio St.3d 593, 600 (2000); see State v. Wine, 140 Ohio St.3d 409,
2014-Ohio-3948, ¶ 34 (a trial court "must give an instruction on a lesser included offense
if under any reasonable view of the evidence it is possible for the trier of fact to find the
defendant not guilty of the greater offense and guilty of the lesser offense").
       {¶ 25} In deciding whether to provide a lesser-included offense instruction, the trial
court must consider both the state's evidence and the defense's evidence, and it must view
the evidence in the light most favorable to the defendant. Anderson, 2006-Ohio-6152, at
No. 17AP-590                                                                               8


¶ 39; State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 37. An instruction on a
lesser-included offense is not warranted, however, every time "some evidence" is presented
to support the lesser offense. State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-3397, ¶ 84.
The court must find "sufficient evidence" to allow a jury to reasonably reject the greater
offense and find the defendant guilty on a lesser-included, or inferior degree, offense. Id.
For example, "a defendant's own testimony that he did not intend to kill his victim does not
entitle him to a lesser-included offense instruction 'if the evidence on whole does not
reasonably support an acquittal on the murder offense and a conviction on a lesser
offense.' " Id., quoting State v. Willis, 8th Dist. No. 99735, 2014-Ohio-114, ¶ 51.
       {¶ 26} The issue, therefore, is whether the evidence presented at trial supported
both an acquittal as to the charged offense of aggravated murder and a conviction for
reckless homicide. A key distinction between the offenses of aggravated murder and
reckless homicide is that aggravated murder requires a purposeful mental state, whereas a
reckless mental state is sufficient to establish reckless homicide. Trimble at ¶ 190. "A
person acts purposely when it is the person's specific intention to cause a certain result,"
while "[a] person acts recklessly when, with heedless indifference to the consequences, the
person disregards a substantial and unjustifiable risk that the person's conduct is likely to
cause a certain result or is likely to be of a certain nature." R.C. 2901.11(A) and (C).
       {¶ 27} On appeal, Rutledge asserts the evidence supported an instruction on
reckless homicide on the theory that the harsh lighting, tear gas, and breaching tactics used
by police could have startled him and caused him to recklessly fire off warning shots.
However, according to the evidence presented at trial, Rutledge fired his gun methodically
in a "walking up" pattern up the armored vehicle until one of his shots hit Officer Smith. As
he was engaging the police in gunfire, he was screaming at the SWAT officers to "come and
get" him, taunting them as he did so. Prior to shooting and killing Officer Smith, Rutledge
had also fired his gun through the floor boards down into the basement where officers were
staged, and he fired at officers when they attempted to breach the front door, using tactical
positioning and screaming at officers to get out of his house. The officers had continually
and repeatedly announced their presence at the scene and attempted to coax Rutledge out
of the house peacefully. As the trial court noted, Rutledge knew the officers outside were
people, and he repeatedly shot at groups of people throughout the course of the entire
No. 17AP-590                                                                                  9


SWAT situation. Thus, on this record, there was no reasonable basis for the jury to find
that Rutledge did not fire his weapon purposely toward the officers but instead recklessly
fired his gun after being startled by the actions of the SWAT officers. See Trimble at ¶ 193-
96; State v. Hubbard, 10th Dist. No. 11AP-945, 2014-Ohio-122, ¶ 17 (defendant not entitled
to instruction on reckless homicide despite his assertion that he only meant to fire warning
shots and did not intend to hurt anyone because evidence at trial demonstrated that
defendant fired his gun in the direction of a group of people and injured two separate people
in that group).
       {¶ 28} We also note that the trial court did instruct the jury on the lesser-included
offense of felony murder. Thus, if the jurors had any doubt about Rutledge's purpose to kill
but were reluctant to acquit, they could have found Rutledge guilty of felony murder.
However, the jury chose to find Rutledge guilty of aggravated murder. Under these
circumstances, it is unlikely that the jury would have found Rutledge guilty of the even less
culpable crime of reckless homicide. Trimble at ¶ 197 (noting any error in failing to instruct
on lesser-included offense is harmless error where the jury had the option to convict of a
less culpable offense but instead chose to convict on the more culpable offense), citing State
v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 139.
       {¶ 29} Because the evidence at trial did not reasonably support both an acquittal for
aggravated murder and a conviction for reckless homicide, the trial court did not abuse its
discretion in declining to instruct the jury on reckless homicide. Therefore, we overrule
Rutledge's first assignment of error.
IV. Second Assignment of Error – Evidence of Mental Illness
       {¶ 30} In his second assignment of error, Rutledge argues the trial court erred when
it instructed the jury that it was not allowed to consider evidence of mental illness in
relation to his mental state. More specifically, Rutledge argues the trial court erred in
instructing the jury regarding evidence of mental illness because he was not attempting to
present a diminished capacity defense and instead sought to use evidence of mental illness
as one factor for the jury to consider in deciding whether Rutledge had the requisite mental
state to be found guilty.
       {¶ 31} Generally, the trial court has discretion to decide to give or refuse a particular
instruction, and an appellate court will not disturb that decision absent an abuse of
No. 17AP-590                                                                              10


discretion. State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, ¶ 127, citing
Clark v. Grant Med. Ctr., 10th Dist. No. 14AP-833, 2015-Ohio-4958, ¶ 50. However, when
a jury instruction contains an incorrect statement of the law, a reviewing court applies a
mixed de novo and abuse of discretion standard of review. State v. Morris, 132 Ohio St.3d
337, 2012-Ohio-2407, ¶ 21, citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995).
Thus, "[i]n examining errors in a jury instruction, a reviewing court must consider the jury
charge as a whole and 'must determine whether the jury charge probably misled the jury in
a matter materially affecting the complaining party's substantial rights.' " Kokitka at 93,
quoting Becker v. Lake Cty. Mem. Hosp. West, 53 Ohio St.3d 202, 208 (1990).
       {¶ 32} As the Supreme Court of Ohio has repeatedly held, "the partial defense of
diminished capacity is not recognized in Ohio." State v. Fulmer, 117 Ohio St.3d 319, 2008-
Ohio-936, ¶ 66, citing State v. Jackson, 32 Ohio St.2d 203, 206 (1972); State v. Wilcox, 70
Ohio St.2d 182 (1982), paragraph one of the syllabus. Thus, where a defendant does not
pursue an insanity defense, Ohio law is well-settled that the defendant may not offer
testimony "in an effort to show that he lacked the mental capacity to form the specific
mental state required for a particular crime." Fulmer at ¶ 67, citing State v. Gooey, 46 Ohio
St.3d 20, 26 (1989).
       {¶ 33} At trial, there were several occasions when evidence of mental illness was
either introduced or attempted to be introduced, including testimony from Young about
her concerns about Rutledge's mental health and testimony indicating that the police radio
call about Rutledge suggested the situation involved mental health issues. During the
presentation of evidence, the trial court instructed the jury:
              I'm going to give you an instruction of law right now, folks. It's
              important. We've had testimony in the case regarding
              Mr. Rutledge's mental health. There was some testimony
              regarding this probate warrant. I've allowed some of that
              testimony. Some of it came in through the State; some of it
              came in through the defense.

              But at this point, I'm going to give you an instruction that I'm
              going to allow some further questions regarding Mr. Rutledge's
              alleged mental condition both before and during the relevant
              time frame here, but the purpose of the testimony is to provide
              background information and to explain circumstances of what
No. 17AP-590                                                                              11


               actions the police may have taken or not taken. So it's not being
               offered for the truth of the matter.

               So, in other words, we have no expert testimony here about his
               mental condition. The law allows certain testimony at times to
               be offered not for the truth of the matter, and that can be
               confusing. But, in other words, the police may have taken
               certain actions because they had this information.

               It doesn't mean the information is true; it means this is
               information they were given, and as a result, did they take
               certain actions. It's not being offered for the truth of the
               matter. You can't consider it for the truth of the matter.

               And, in addition, Ohio law does not permit you to consider the
               testimony so far as it relates to Mr. Rutledge's mental-health
               condition with regard to whether or not he could form the
               intent or any of the mental elements with regard to the
               offenses.

(Tr. at 1583-85.)
       {¶ 34} Defense counsel objected to this instruction at trial, arguing that it would
mislead the jury as to its actual theory of defense. Defense counsel asserted it was not
attempting to use a diminished capacity defense but instead planned to use the evidence of
Rutledge's mental health as one factor for the jury to consider in determining whether
Rutledge possessed the requisite mens rea for the offenses. The trial court overruled
Rutledge's objection, noting the defense's argument was one of semantics in which it was
attempting to pursue the functional equivalent of a diminished capacity defense without
labeling it as such.
       {¶ 35} During the final instructions to the jury, the trial court again instructed the
jury on this issue, stating:
               I also instructed you that Ohio law does not recognize the
               partial defense of diminished capacity, and as a result, you are
               not to consider any evidence of mental illness or mental
               instability in determining whether the defendant possessed the
               required mental states of prior calculation and design,
               purposely or knowingly to commit the crimes.

               However, I caution you, the State still must prove all the
               elements of each charge including the above required mental
No. 17AP-590                                                                               12


              states beyond a reasonable doubt, and you may consider all of
              the other facts and circumstances introduced as evidence in
              determining the defendant's mental state during the events in
              question.

(Tr. at 2600-01.)
       {¶ 36} On appeal, Rutledge reiterates the argument he made at trial. He continues
to assert he was not attempting to use evidence of his mental health to show total incapacity,
or diminished capacity; rather, he asserts the evidence was intended to be considered as a
mere factor impacting the total calculation of whether he had formed the required mental
state for each of the crimes. Stated another way, Rutledge argues he was not attempting to
show whether he could form the requisite mental state but instead was attempting to show
whether he had formed the requisite mental state. Under the law of diminished capacity in
Ohio, however, we find this to be a distinction without a difference. We agree with the trial
court that Rutledge's argument in this regard is a matter of semantics that still amounts to
the functional equivalent of a diminished capacity defense. As the Supreme Court held in
Fulmer, when "a defendant asserts the functional equivalent of a diminished-capacity
defense, the trial court should instruct the jury to disregard the evidence used to support
that defense unless the defendant can demonstrate that the evidence is relevant and
probative for purposes other than a diminished-capacity defense." Fulmer at ¶ 70.
       {¶ 37} Here, the trial court's instructions adequately and appropriately informed the
jury that it could consider the evidence of Rutledge's mental health in the context of what
information the police had at the time and how that information impacted the police's
response to the situation, but the jury could not consider the evidence of Rutledge's mental
health to determine whether Rutledge possessed the required mental states for the
offenses. The trial court's instruction was an accurate statement of Ohio law, and it did not
mislead the jury as to the defense Rutledge was attempting to present. Having considered
the jury instruction as a whole, we find the trial court did not abuse its discretion in
instructing the jury on the issue of Rutledge's mental health. We overrule Rutledge's second
assignment of error.
No. 17AP-590                                                                                  13


V. Third Assignment of Error – Ineffective Assistance of Counsel
       {¶ 38} In his third assignment of error, Rutledge argues he received the ineffective
assistance of counsel. More specifically, Rutledge asserts his trial counsel was ineffective
for failing to proffer evidence of specific mental health diagnoses during the trial phase.
       {¶ 39} In order to prevail on a claim of ineffective assistance of counsel, Rutledge
must satisfy a two-prong test. First, he must demonstrate that his counsel's performance
was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong
requires Rutledge to show that his counsel committed errors which were "so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. If Rutledge can so demonstrate, he must then establish that he was
prejudiced by the deficient performance. Id. To show prejudice, Rutledge must establish
there is a reasonable probability that, but for his counsel's errors, the result of the trial
would have been different. A "reasonable probability" is one sufficient to undermine
confidence in the outcome of the trial. Id. at 694.
       {¶ 40} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
Rutledge contends his trial counsel was ineffective in failing to proffer evidence of specific
mental health diagnoses during the trial phase. In particular, Rutledge argues that had his
trial counsel proffered the expert opinions regarding Rutledge's specific mental health
diagnoses, the trial court may have ruled differently on the admissibility of the other
evidence related to Rutledge's mental health discussed in the second assignment of error.
       {¶ 41} In order to succeed on a claim of ineffective assistance of counsel, an
appellant must overcome the strong presumption that, under the circumstances, the
challenged action could be considered a sound trial strategy. State v. Dixon, 10th Dist. No.
03AP-564, 2004-Ohio-3374, ¶ 13. A reviewing court "must refrain from second-guessing
counsel's strategic decisions." Id., citing State v. Carter, 72 Ohio St.3d 545, 557-58 (1995),
citing Strickland at 689.
       {¶ 42} During the penalty phase of the case, trial counsel presented expert testimony
that Rutledge has specific mental health diagnoses including anxiety, depression, and
delusional disorder with persecutory features. Rutledge argues on appeal that a proffer at
No. 17AP-590                                                                                 14


trial of this specific evidence would have aided his defense at trial, but he does not specify
how. Notably, trial counsel stated on the record that the evidence would be used as
mitigation and planned to reserve it as such rather than introduce it at trial. Though trial
counsel could have proffered the information, Rutledge does not explain how such a proffer
would have helped him during the trial phase as the trial court ruled, correctly, that Ohio
does not recognize a diminished capacity defense. See Dixon at ¶ 14 ("[f]ailing to raise
meritless issues does not constitute ineffective assistance of counsel"), citing State v. Elson,
5th Dist. No. 1996CA00142 (June 9, 1997) (trial counsel did not err by failing to proffer
expert testimony that appellant's seeing his ex-wife in a new relationship "caused extreme
rage in appellant," as the testimony was inadmissible). See also State v. Warren, 8th Dist.
No. 83823, 2004-Ohio-5599, ¶ 31 (noting "a failure to proffer does not constitute ineffective
of counsel per se," and, where the failure to proffer appears to be a matter of sound strategy,
it will not substantiate a claim of ineffective assistance of counsel).
       {¶ 43} Thus, we conclude Rutledge's trial counsel's decision not to proffer the expert
testimony related to his specific mental health conditions was not objectively unreasonable
or deficient. Dixon at ¶ 15 (noting "appellant's counsel was under no obligation to proffer
for the record the testimony of a witness he did not call"). We overrule Rutledge's third
assignment of error.
VI. Fourth Assignment of Error – Response to Juror Question
       {¶ 44} In his fourth and final assignment of error, Rutledge argues the trial court
erred when it incorrectly lowered the state's burden to prove Rutledge's mental state for the
offense of felonious assault in response to a jury question.
       {¶ 45} "Where, during the course of its deliberations, a jury requests further
instruction, or clarification of instructions previously given, a trial court has discretion to
determine its response to that request." Carter, 72 Ohio St.3d at paragraph one of the
syllabus. See also State v. Preston-Glenn, 10th Dist. No. 09AP-92, 2009-Ohio-6771, ¶ 28
("[i]t is within the sound discretion of the trial court to provide supplemental instructions
in response to a question from the jury"). "The trial court's response to a jury's question,
when viewed in its entirety, must be a correct statement of law and be consistent with or
supplement the instructions previously given to the jury." State v. Jones, 10th Dist. No.
No. 17AP-590                                                                                15


15AP-670, 2017-Ohio-1168, ¶ 17, citing Preston-Glenn at ¶ 28. We review a trial court's
response to a jury's question for an abuse of discretion. Jones at ¶ 17.
       {¶ 46} The trial court initially provided the following instruction to the jurors in the
context of the elements of felonious assault: "The offense of felonious assault is knowingly
causing or attempting to cause physical harm to another by means of a deadly weapon
and/or knowingly causing serious physical harm to another." (Tr. at 2615.) The trial court
further instructed the jury that "[a] person acts knowingly, regardless of his purpose, when
the person is aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when the person
is aware that such circumstances probably exist." (Tr. at 2602.)
       {¶ 47} After the jurors retired to deliberate, they sent three questions to the trial
court. The question at issue here was "[i]f one believes no shots fired by the suspect were
an attempt to hurt someone, can that person agree with felonious assault?" (Tr. at 2670.)
The trial court conferred with counsel for Rutledge and the state regarding the appropriate
response. Ultimately, over defense counsel's objection, the trial court gave the following
response to the jury:
                 A person's purpose or intent is not required to be established
                 by the prosecution in order to prove felonious assault. If a
                 person fires shots knowing that the shots probably could harm
                 someone and the other elements are proven beyond a
                 reasonable doubt, then the person could be convicted of
                 felonious assault. On the other hand, if a juror has a reasonable
                 doubt the person did not knowingly cause or attempt to cause
                 physical harm, then the person could not be convicted by that
                 juror or jurors.

(Tr. at 2676.)
       {¶ 48} Rutledge argues the response to the jury question contained an inaccurate
statement of law. Specifically, Rutledge asserts the definition of knowingly requires the
person to know his or her conduct "will probably" cause a certain result or "will probably"
be of a certain nature. R.C. 2901.22(B). By instructing the jury that the person knows his
or her conduct "probably could harm someone," Rutledge argues the trial court
impermissibly lowered the state's burden of proof on the mens rea element. (Emphasis
added.) Stated another way, Rutledge argues the trial court's use of the phrase "probably
No. 17AP-590                                                                                   16


could harm" lowers the state's evidentiary burden from the statutory language of "will
probably cause a certain result."
       {¶ 49} We note that Rutledge provides no citation to authority supporting his
contention that the trial court's use of the phrase "probably could harm" rendered the
instruction an inaccurate statement of law. Even if we were to agree with Rutledge that the
trial court's response to this question from the jury did not precisely track the statutory
language of R.C. 2901.22(B), we nonetheless would not conclude that the trial court abused
its discretion in its response to the jury question. As noted above, we must not consider
instructions to the jury in isolation and instead must consider the charge to the jury as a
whole. In its instructions to the jury prior to deliberations, the trial court correctly
instructed the jury on the definition of knowingly. Then, in answering the first and third
questions submitted by the jury, all of which pertained to the offense of felonious assault,
the trial court specifically directed the jury to refer back to the written instructions
containing the correct definition of knowingly. Thus, when the trial court's instructions to
the jury on the three questions are read in context, and not in isolation, we find the trial
court's response to the jury question was consistent with the instructions previously, and
accurately, given. Jones at ¶ 20 (where "[t]he trial court specifically drew the jury's
attention to the elements of the offenses given in the jury instructions at the close of trial,"
the trial court did not abuse its discretion in its response to a jury question after the start of
deliberations), citing Preston-Glenn at ¶ 29. Given the overall context within which the
instruction was given, we therefore conclude the trial court did not abuse its discretion in
responding to the jury question.
       {¶ 50} Accordingly, we overrule Rutledge's fourth and final assignment of error.
VII. Disposition
       {¶ 51} Based on the foregoing reasons, the trial court did not abuse its discretion in
declining to instruct the jury on the lesser-included offense of reckless homicide, the trial
court did not err in instructing the jury on the evidence of mental illness, Rutledge did not
receive the ineffective assistance of counsel, and the trial court did not abuse its discretion
No. 17AP-590                                                                              17


in responding to a jury question during deliberations. Having overruled Rutledge's four
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
                                                                     Judgment affirmed.

                         BROWN and BRUNNER, JJ., concur.
