[Cite as State v. Shakhmanov, 2019-Ohio-4598.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28009
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-1987/5
                                                  :
 SEVIL SHAKHMANOV                                 :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                          Rendered on the 8th day of November, 2019.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                             .............



TUCKER, J.
                                                                                          -2-




        {¶ 1} Defendant-appellant Sevil Shakhmanov appeals from his conviction for

felonious assault.1   Sevil challenges the trial court’s decisions denying his motion to

suppress and denying his motion for a mistrial. Sevil also claims he was denied the

effective assistance of counsel at trial. Finally, he contends he is entitled to a new trial

and, at this trial, retroactive application of the burden shifting changes made by the Ohio

General Assembly to Ohio’s self-defense statute, R.C. 2901.05. For the reasons that

follow, we affirm.



                             I.      Facts and Procedural History

        {¶ 2} Aydin Akhmdov worked as a driver for Ameripro Logistics, L.L.C. (hereinafter

Ameripro), a Dayton trucking company owned by Sevil’s brother, Mustafa Shakhmanov.

In 2015, Aydin broke his leg and was unable to work. Aydin claimed that when he

stopped working, the company owed him $1,800. Aydin also claimed that, over the

course of several months, he attempted to contact Mustafa regarding the money owed.

On June 7, 2016, Aydin called Sevil, who he identified as a manager and dispatcher at

Ameripro. Sevil told Aydin to come to the Ameripro offices.

        {¶ 3} In State v. Koch, 2d Dist. Montgomery No. 28041, 2019-Ohio-4182, the

appeal of one of Sevil’s co-defendants, this court set forth the following description of the

events that occurred when Aydin arrived at the Ameripro offices:2


1
 Sevil’s brothers Mustafa Shakhmanov and Sobir Shakhmanov were also involved in the
altercations underlying this appeal. For ease of reference, we will refer to the all three
by their first names.

2
    Koch involved the direct appeal of Baris Koch, another individual involved in the
                                                                                    -3-


             Surveillance cameras located outside the Ameripro office recorded

      the encounter between Aydin and members of the Shakhmanov and Koch

      families. In the video, Aydin can be seen arriving at Ameripro and parking

      his car at a tire business across Valley Street from Ameripro.       Aydin

      testified that as he sat in his parked car, he observed Sevil remove a tire

      iron from his car and hide it in his pants. The video shows that Aydin got

      out of his vehicle and stood in the tire business parking lot, facing

      Ameripro’s lot. Sevil and Mustafa walked to the edge of the Ameripro lot,

      and the two men can be seen attempting to call Aydin across the street.

      When Aydin refused to cross the street, Sevil, Mustafa, and their brother,

      S[o]bir, who had joined them, walked across the street to where Aydin was

      standing.

             While the three men talked to Aydin, Izmir and Murad Koch drove up

      in a white BMW sedan and parked behind where all of the men were talking,

      perpendicular to Aydin’s Honda. At that point, the men surrounded Aydin.

      Aydin moved next to the driver’s side door of his Honda, and the group

      moved with him. After the apparent verbal disagreement continued there

      for approximately 40 seconds, Aydin attempted to walk away from the men.

      Murad ran toward Aydin and repeatedly hit him with a collapsible metal

      baton as Aydin attempted to back away. After Aydin ran between some

      vehicles parked nearby, all five men followed him and began beating him.



underlying altercations. Because Baris shares the same last name as his two brothers,
Izmir and Murad, we will also refer to them by their first names.
                                                                                  -4-


Aydin testified that during the assault, Sevil struck him in the head with a

tire iron. The physical assault lasted for approximately 20 seconds, and it

stopped when an unconnected person intervened. The men continued to

engage verbally.

       At this juncture, Baris [Koch] and Kamil Abbasov, another cousin,

drove into the tire business’s parking lot in a black SUV. While still verbally

arguing with the Shakhmanovs, Izmir and Murad, Aydin returned to his

vehicle and left the scene in his Honda. As Aydin drove away, the video

depicts Mustafa picking up a rock and throwing it at Aydin’s vehicle.

Thereafter, Izmir and Baris relocated their vehicles to Ameripro’s parking

lot.

       After Aydin left, Mustafa and Sevil could be seen in the Ameripro

lobby, talking with Kamil. Sobir repeatedly looked out the lobby door. * * *

Approximately nine minutes after the end of the first altercation, Murad and

Izmir left Ameripro in the white BMW.

       Approximately 12 minutes after the first encounter, Aydin returned to

Ameripro, again parking his vehicle across the street in the tire business’s

parking lot. Aydin got out of his vehicle and leaned against the hood, facing

Ameripro. He was armed with brass knuckles and a pocket knife in his

pocket. Aydin testified that he shouted at Sevil from across the street

regarding the back pay he was owed. The video depicts Sevil responding

by making a profane gesture directed at Aydin.

       A few minutes after Aydin returned, the Shakhmanov brothers can
                                                                                 -5-


be seen in the Ameripro lobby placing metal poles and rebar just inside the

door of the business. * * *

        Approximately six minutes after Aydin returned, Murad and Izmir also

returned in their white BMW and parked in the Ameripro side parking lot.

Murad, armed with a metal baton, began yelling at Aydin from across the

street and started walking toward Aydin in the Ameripro parking lot. Izmir

followed a short distance behind, followed by Sevil. Murad walked across

the street to where Aydin was standing. Aydin testified that they were

yelling at him as they approached him, stating that they were going to “tear

him to pieces.” When Murad approached him with the metal baton (still

lowered), Aydin pulled out a pocketknife and stabbed Murad in the arm.

Thereafter, Aydin attempted to run away but was chased by Murad, Izmir,

and Sevil. Mustafa, armed with rebar, ran up to the group and joined the

fray.

        While the group chased Aydin, Baris came out of the Ameripro lobby,

and he, Kamil, and Sobir watched from the front Ameripro parking lot.

Aydin tripped and fell down in the tire business’s parking lot, at which point

Mustafa began striking him with a metal pole and Izmir can be seen kicking

him in the head and upper body. Murad also ran up and struck Aydin with

a metal pole. Aydin testified that Sevil was about to hit him with a metal

pole. Aydin, however, was able to retrieve the set of brass knuckles from

his pocket and strike Sevil, knocking him to the ground. Aydin then ran

across the street toward the Ameripro office in an effort to escape from his
                                                                                -6-


attackers.

       Upon reaching the parking lot in front of Ameripro, however, Aydin

was struck in the head from behind with a metal pole by Murad. When

Aydin fell to the ground, Murad, Mustafa, and Kamil began hitting him with

metal poles. Izmir, who did not have a weapon, could be seen kicking

Aydin in the head. Thereafter, Sobir pulled his brothers and cousins away

from Aydin. Eventually, Aydin was able to stand up and walk back across

the street toward where his car was parked. * * *

       At this point, another individual at Ameripro, named Aziz, called 911

after seeing the injury to Murad’s arm; he reported that someone had been

stabbed.

       Izmir followed Aydin across the street and continued arguing with

him. As Aydin neared his car, he turned around and began walking back

toward the tire business and Izmir.     The video shows Izmir and Aydin

fighting. At this juncture, Baris ran across the street and jump-kicked Aydin

in the head, knocking him either into a wooden fence or to the ground by a

wooden fence     Mustafa, Murad, and Kamil also ran across the street to

continue attacking Aydin.

       The video shows that Aydin walked away and continued arguing with

Izmir and Mustafa. As Sobir, Murad, and Baris joined Mustafa, Baris took

off his shirt and attempted to wrap Murad’s arm. Several men chased

Aydin behind the wooden fence where the assault apparently continued.

***
                                                                                       -7-


                 The video did not capture what occurred behind the fence, but Aydin

       testified that he saw a baseball bat on the ground, picked it up, hit Mustafa

       a couple of times with it, and then the bat was taken away [from] him. Aydin

       testified “all seven people,” meaning the Shakhmanovs, the Kochs, and

       Abbasaov, assaulted him behind the fence. Aydin testified that Baris “was

       beating me, too.” (Tr. at 373.) The group was behind the fence for

       approximately 52 seconds.         Murad came out from behind the fence

       carrying the baseball bat.

                 Twenty-six seconds after the group left the fenced area, Aydin

       walked out from behind the fence without his shirt and wearing only one

       shoe. Aydin walked to his vehicle and got inside, but when he tried to

       leave, Izmir walked over to the vehicle, reached into the front passenger

       side window and took the key out of the ignition. Thereafter, Aydin simply

       remained seated in his vehicle and waited for the police, who arrived

       moments later.

Id. at ¶ 6-19.

       {¶ 4} On July 5, 2016, Sevil, Mustafa, Sobir, Izmir, Murad and Baris, were each

indicted on one count of felonious assault (deadly weapon), and one count of felonious

assault (serious physical harm). Kamil was indicted on July 20, 2016. The defendants

filed a motion to suppress the video surveillance recording that the police had taken from

Mustafa’s office at Ameripro. They later filed an amended motion to suppress arguing

that Mustafa did not give valid consent for the seizure. Following a hearing on the motion

to suppress, the trial court issued a decision in which it concluded the following:
                                                                                        -8-


          * * * As to [Mustafa’s] office, [Sevil] presented no evidence as to

          ownership or right of access generally nor specifically as to the DVR and

          its recordings. [Sevil] did not sustain [his] burden of proof to show a

          reasonable expectation of privacy in the business areas entered by the

          police.    [Sevil] presented no evidence pertaining to [his] personal

          ownership, possession, control, use, ability to regulate access,

          subjective privacy concerns, nor objective privacy considerations as to

          the site or the evidence at issue. * * * There is simply no evidence that

          any of the co-defendants, other than Mustafa Shakhmanov, would

          possess a reasonable expectation of privacy * * * to the areas entered

          by the police. * * *

      {¶ 5} The record shows that the trial court intended to hold separate trials for each

of the co-defendants. However, In November 2017, Izmir filed a motion requesting that

he and his brother Murad be tried together. Subsequently, Sevil and Kamil were joined,

and a trial of the four was commenced in March 2018. The jury found Sevil guilty of both

counts of felonious assault. The trial court sentenced Sevil to a term of community

control sanctions.

      {¶ 6} Sevil appeals.



                             II.   Expectation of Privacy Analysis

      {¶ 7} Sevil’s first assignment of error states:

      THE TRIAL COURT ERRED BY HOLDING THAT APPELLANT COULD

      NOT MOVE TO SUPPRESS EVIDENCE IN THIS MATTER BECAUSE HE
                                                                                          -9-


       DID NOT HAVE A PERSONAL EXPECTATION OF PRIVACY AT THE

       BUSINESS      FROM      WHICH      THE    SURVEILLANCE         VIDEO     WAS

       OBTAINED, IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH

       AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE

       ONE, SECTION 14 OF THE CONSTITUTION OF OHIO.

       {¶ 8} Sevil contends that the trial court erred by denying his motion to suppress

the surveillance recording that was taken from Mustafa’s office located in the Ameripro

building. In support, Sevil claims that he had a reasonable expectation of privacy in the

business property, including Mustafa’s office.

       {¶ 9} “When considering a motion to suppress, the trial court assumes the role of

trier of fact and is therefore in the best position to resolve factual questions and evaluate

the credibility of witnesses.” (Citation omitted). State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the

trial court's findings of fact if they are supported by competent, credible evidence.”

(Citation omitted.) Id. “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” (Citation omitted.) Id. With this standard

of review in mind, we turn to the question of whether Sevil was entitled to suppression of

the surveillance video.

       {¶ 10} “The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures.” State v. Roberts, 2d Dist.

Montgomery No. 23219, 2010-Ohio-300, ¶ 14, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968).         An analysis of this Fourth Amendment protection
                                                                                       -10-


“focuses, primarily, on whether a person has a ‘constitutionally protected reasonable

expectation of privacy.’ ” State v. Peterson, 173 Ohio App.3d 575, 2007-Ohio-5667, 879

N.E.2d 806 (2d Dist.), quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967) (Harlan, J., concurring).

      {¶ 11} “[T]he person challenging the legality of a search bears the burden of

proving that he or she has a legitimate expectation of privacy in the place searched that

society is prepared to recognize as reasonable.” State v. Dennis, 182 Ohio App.3d 674,

2009-Ohio-2173, 914 N.E.2d 1071, ¶ 21 (2d Dist.), citing Rakas v. Illinois, 439 U.S. 128,

143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) and State v. Williams, 73 Ohio St.3d 153, 166,

652 N.E.2d 721 (1995). “The individual must have a subjective expectation of privacy in

the place searched, and that expectation must be objectively reasonable and justifiable.”

Id., citing Rakas at 143; State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860

N.E.2d 1006, ¶ 14. The following factors have been considered in determining whether

an individual’s expectation of privacy is reasonable:    “(1) ownership, (2) possession

and/or control, (3) historical use of the property, (4) ability to regulate access, (5)

subjective anticipation of privacy, (6) objective reasonableness of that anticipation, and

(7) the totality of the circumstances.” (Citations omitted.) State v. Trammell, 2d Dist.

Montgomery No. 17196, 1999 WL 22884, *6.

      {¶ 12} The prohibition on unreasonable searches and seizures applies both to

commercial premises and to private homes. New York v. Burger, 482 U.S. 691, 699,

107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).         However, the expectation of privacy in

commercial property “is different from, and indeed less than, a similar expectation in an

individual’s home.” (Citation omitted.) Id. at 699. Accord State v. Henderson, 2d Dist.
                                                                                         -11-


Montgomery No. 22062, 2008-Ohio-1160, ¶ 13.

       {¶ 13} In challenging the trial court’s findings, Sevil argues that the trial court

placed too much emphasis on the ownership and control of the business and ignored

other factors indicating that he had a reasonable expectation of privacy in the business

premises.     Specifically, Sevil contends the transcript of the suppression hearing

demonstrates that, as Mustafa’s brother, he helped run the business and thus had “the

ability to regulate access through the use of keys and access cards.” He also claims the

transcript demonstrates that he “had access to the room in which the video surveillance

equipment was maintained and operated.” We disagree.

       {¶ 14} Mustafa was the only co-defendant to testify during the suppression

hearing.    The undisputed evidence demonstrates that the surveillance recording

equipment was housed in Mustafa’s personal office. While Mustafa’s testimony did

indicate that he and his brothers, Sevil and Sobir, operated the business, his trial counsel

conceded that Mustafa was the owner and registered agent for service of process for the

company. Further, while the evidence indicated that Mustafa had supplied all of the co-

defendants with keycards that gave them access to the business premises, Mustafa’s

testimony indicated that the access was not unfettered. Specifically, Mustafa testified

that his cousin and co-defendant, Baris Koch, had been provided a keycard. Counsel

for Baris was the first defense attorney to cross-examine Mustafa during the suppression

hearing.    Counsel asked Mustafa whether Baris had access to the office.          Mustafa

testified that Baris did not have access to Mustafa’s private office.       There was no

evidence that the keycard issued to Baris permitted him more or less access to the

business premises than the keycards issued to the other co-defendants. Further, no
                                                                                         -12-


evidence was adduced to demonstrate that any of the keycards issued by Mustafa

permitted access into his office, and no other evidence otherwise indicated that Sevil had

unfettered access to that office.

       {¶ 15} Based upon the record before us, we conclude that the trial court did not err

in finding Sevil failed to meet his burden to establish that he had a reasonable expectation

of privacy in Mustafa’s personal office. Therefore, we conclude that the trial court did not

err in overruling his motion to suppress the surveillance video.

       {¶ 16} The first assignment of error is overruled.



                                    III.   Consent Analysis

       {¶ 17} The second assignment of error asserted by Shakhmanov states:

       THE TRIAL COURT ERRED BY HOLDING THAT CONSTITUTIONALLY

       VALID CONSENT WAS PROVIDED FOR THE COLLECTION OF THE

       SURVEILLANCE VIDEO.

       {¶ 18} Sevil challenges the trial court’s finding that Mustafa knowingly and

voluntarily consented to the police seizure of the surveillance video. However, given our

disposition of the first assignment of error, finding that Sevil did not have a reasonable

expectation of privacy in Mustafa’s personal office, we conclude that this argument is of

no relevance to Sevil’s case.

       {¶ 19} The second assignment of error is overruled.



                                    IV.    Mistrial Analysis

       {¶ 20} Shakhmanov’s third assignment of error is as follows:
                                                                                        -13-


      THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL WHEN

      NEWS ACCOUNTS RELATING TO THE ARREST OF CO-DEFENDANT

      IZMIR KOCH IN A SEPARATE MATTER WERE PUBLISHED DURING

      THE TRIAL THEREBY VIOLATING HIS RIGHT TO DUE PROCESS OF

      LAW UNDER THE FIFTH AMENDMENT TO THE UNITED STATES

      CONSTITUTION        AND     ARTICLE     ONE,    SECTION       10   OF    THE

      CONSTITUTION OF OHIO.

      {¶ 21} Sevil contends that the trial court should have granted a mistrial after media

reports that his co-defendant had been arrested during trial. He further argues that the

discovery that a juror had read a news article regarding the arrest mandated a mistrial.

      {¶ 22} “The granting or denial of a motion for mistrial rests in the sound discretion

of the trial court and will not be disturbed on appeal absent an abuse of discretion.”

(Citations omitted.) State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001).

The term “abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482

N.E.2d 1248 (1985).

      {¶ 23} According to the record, following the conclusion of the second day of trial,

Izmir Koch was arrested and detained in Cincinnati on unrelated federal charges. Izmir

was, therefore, unable to attend trial the following day, which caused the trial court to

grant a one-day continuance. Trial resumed the following day, at which time defense

counsel requested a mistrial based upon a demonstration that local media had published

information regarding the arrest. The trial court decided to ask the jurors as a group,

rather than individually, whether they had seen or heard any media reports related to the
                                                                                            -14-


case. None of the jurors indicated that they had had contact with any media reports

concerning the case. Thereafter, the trial court reiterated its initial instructions prohibiting

jurors from contact with media reports during the course of the trial. Based upon the lack

of a response by any jurors, the trial court denied the request for a mistrial.

       {¶ 24} Sevil argues that the trial court questioned the jury about their exposure to

media reports the day after having “postponed [the trial] for unspecified reasons.” Thus,

he claims that, while the jurors might not have known the details of what had transpired,

they “were aware that (1) Co-Defendant Izmir Koch was not present in the courtroom on

[the day the trial was postponed; (2) the trial had to be postponed on that day due to an

‘unexpected delay’; (3) the next day, Co-Defendant Izmir Koch was back in the courtroom

and the trial court questioned the jury about having seen media reports.” He argues that

these facts mandate the conclusion that the jury was aware that “something happened

the day before to keep Co-Defendant Izmir Koch from being in court, and there had been

media reports about it.”

       {¶ 25} We first note that, on the second day of trial when Izmir was in federal

custody, the trial court informed the jury that the trial would be delayed for one day. The

trial court did not specify the reason for the delay. The only persons present in the

courtroom at that time were the judge, the judge’s staff and the jury. None of the defense

attorneys, prosecutors, or defendants were present in the courtroom. Thus, the jury did

not have the opportunity to note that Izmir was not present. Further, even if the jury did

connect the one-day delay to the court’s subsequent inquiry regarding media exposure,

there was no way to connect it to the conduct of any particular defendant. All the jury

was aware of, according to the record, is that an issue with media reports had arisen;
                                                                                         -15-


something they had been admonished to avoid.              Given that the jury had been

consistently instructed to avoid the media during the trial, there was nothing that would

lead the jury to surmise that the media reports concerned any new charges against any

of the defendants. It is just as likely that the jurors believed that the trial court had

delayed trial due to one of the jurors being exposed to media reports. In any event, Sevil

has failed to demonstrate, and we cannot discern, any prejudice arising from this issue.

Thus, we cannot say that the trial court abused its discretion in denying the requested

mistrial.

       {¶ 26} Sevil next contends that the trial court should have granted a mistrial when,

on the morning of the final day of trial, Juror Number Seven informed the bailiff that she

had read a portion of a Dayton Daily News article before realizing that it was about the

arrest of Izmir Koch. It appears that the juror read the article the previous night.

       {¶ 27} The court conducted an inquiry of the juror outside the presence of the other

jurors. The court asked the juror, in several different ways, whether what she had read

would affect her ability to be fair and impartial in this case and to decide this case solely

on the evidence presented at trial. The juror indicated, multiple times, that the article

would not impair her ability to serve as a juror on this case. The juror was instructed that

she should not discuss the article or the court’s discussion with her with the other jurors.

Sevil argues that this information mandated a mistrial when it came to light.

       {¶ 28} We first note that, after questioning the juror, the court asked defense

counsel whether they were satisfied with the juror’s responses. None of the parties

requested a mistrial. Nor did they request that the juror be replaced by the alternate

juror. Thus, we review this argument under a plain error standard. To establish plain
                                                                                              -16-


error, a defendant must point to an obvious error that affected the outcome of the

proceedings below. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934

N.E.2d 920, ¶ 6. Reversal is warranted only if the outcome “clearly would have been

different absent the error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001).

“Notice of plain error * * * is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Rohrbaugh at ¶ 6,

quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.

       {¶ 29} The juror read an article concerning Izmir, and there was no indication that

it involved any of the other defendants. The record demonstrates that the trial court

engaged the juror in a thorough colloquy about the effect of that article, which we conclude

was sufficient to permit the court to reasonably conclude that the juror had not been

prejudiced thereby and that she would be able to act fairly and impartially in rendering a

verdict based solely upon the evidence presented in the case before her. Finally, the

fact that none of the defense attorneys questioned the juror’s ability to be impartial

following the court’s questioning and that none sought a mistrial or the replacement of the

juror indicates that the trial court did not err in failing to sua sponte grant a mistrial.

       {¶ 30} Based upon this record, we find no error, let alone plain error, that would

cause us to question the trial court’s decision to leave the juror on the panel.

Accordingly, the third assignment of error is overruled.



                              V.     Ineffective Assistance Analysis

       {¶ 31} The fourth assignment of error states:
                                                                                          -17-


       APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN

       VIOLATION OF HIS RIGHTS UNDER THE FIFTH AND SIXTH

       AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

       ARTICLE ONE, SECTION 10 OF THE CONSTITUTION OF OHIO WHEN

       HIS TRIAL COUNSEL ACQUIESED IN THE ELIMINATION OF A JURY

       INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF ASSAULT

       AND DID NOT SEEK TO SEVER APPELLANT’S CASE.

       {¶ 32} Sevil contends that he was denied the effective assistance of counsel

because trial counsel stipulated that Aydin suffered serious physical harm, thereby

precluding an instruction on the lesser included offense of misdemeanor assault. He

further contends that trial counsel should have opted to sever his case from that of his co-

defendants.

       {¶ 33} To reverse a conviction based on ineffective assistance of counsel, it must

be demonstrated that counsel's performance was “seriously flawed and deficient,” and

there is a reasonable probability that the result of the defendant's trial or legal proceeding

would have been different had defense counsel provided proper representation. State

v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 26, citing Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 34} To establish the first prong of ineffective assistance, it must be

demonstrated that counsel's performance fell “so below the reasonably objective

standards of the legal community as to constitute a substantial violation of counsel's

essential duties to his client.” (Citation omitted.) State v. Smith, 72 Ohio App.3d 342,

344, 594 N.E.2d 688 (2d Dist.1991). “Trial counsel is entitled to a strong presumption
                                                                                          -18-


that his or her conduct falls within the wide range of reasonable assistance, and a

defendant, in order to overcome the presumption that counsel is competent, must show

that counsel's decisions were ‘not trial strategies prompted by reasonable professional

judgment.’ ” (Citation omitted.) State v. Few, 2d Dist. Montgomery No. 25161, 2012-Ohio-

5407, ¶ 10. “Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel's perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” Id. at

¶ 11, quoting State v. Nabors, 2d Dist. Montgomery No. 24582, 2012-Ohio-4757, ¶ 17,

citing State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31. “Even if

unsuccessful, strategic decisions will not constitute ineffective assistance of counsel.”

Id., citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). “The decision

regarding which defense to pursue at trial is a matter of trial strategy, and trial strategy

decisions are not, generally, a basis of a finding of ineffective assistance of counsel.”

(Citations omitted.) State v. Moss, 2d Dist. Montgomery No. 22496, 2008-Ohio-6969,

¶ 35.

        {¶ 35} We begin with Sevil’s claim that defense counsel was ineffective for failing

to request a separate trial. R.C. 2945.13 states, “[w]hen two or more persons are jointly

indicted for a felony, except a capital offense, they shall be tried jointly unless the court,

for good cause shown on application therefor by the prosecuting attorney or one or more

of said defendants, orders one or more of said defendants to be tried separately.” The

“[j]oinder of defendants and the avoidance of multiple trials is favored in the law” because

it “conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of

multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of
                                                                                          -19-


incongruous results in successive trials before different juries.” State v. Thomas, 61

Ohio St.2d 223, 225, 400 N.E.2d 401, 404 (1980). The question of whether an accused

should be tried separately is a matter left to the discretion of the trial court. State v.

Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981). The burden to show that joinder

was improper by demonstrating that joinder resulted in prejudice is upon the defendant.

Id.

       {¶ 36} We first note that all of the charges against the co-defendants involved the

same altercation. Thus, all of the evidence and exhibits, including the surveillance video

and Aydin’s testimony, introduced in this trial would have been introduced in separate

trials. Further, on the day Izmir was in custody in Cincinnati, the trial court suggested

that Izmir’s case be continued so that the trial of the remaining co-defendants could

proceed. Each of the defense attorneys objected and informed the court that the case

had been “strategically organized,” and that trying the co-defendants together was

necessary for the success of each defendant’s case. This fact alone is sufficient to

permit us to infer that the decision not to seek severance was a matter of trial strategy

that we are reluctant to question. Finally, other than broad statements that counsel did

not provide the “most vigorous defense,” Sevil has failed to demonstrate prejudice. His

claim that the joinder of the cases caused him to cede his right to an instruction on lesser-

included offenses is without merit, as we cannot ascertain whether counsel’s decision

regarding this issue would have been any different if Sevil had been tried separately.

Based upon this record, we cannot say that trial counsel was ineffective with regard to

the failure to seek a separate trial.

       {¶ 37} Sevil next contends that counsel was ineffective because he agreed to
                                                                                        -20-


stipulate that Aydin suffered serious physical harm and thereby prevented Sevil from

seeking a jury instruction on the lesser included offense of misdemeanor assault.

Serious physical harm, as defined by R.C. 2901.01(A)(5), includes the following:

       (a) Any mental illness or condition of such gravity as would normally require

       hospitalization or prolonged psychiatric treatment;

       (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity, whether partial or

       total, or that involves some temporary, substantial incapacity;

       (d) Any physical harm that involves some permanent disfigurement or that involves

       some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result in

       substantial suffering or that involves any degree of prolonged or intractable pain.

       {¶ 38} During trial, Aydin testified that he suffered a laceration to his head that

occurred when Sevil struck him with a tire iron. He also testified that his body was

covered in bruises after the attack.

       {¶ 39} After Aydin’s testimony, counsel and the trial court discussed the necessity

of presenting the testimony of three doctors who would testify on behalf of the State as to

the injuries. One of the doctors was expected to testify that Aydin suffered a concussion

and that he continued to suffer from post-concussive syndrome, which causes nausea,

headaches and dizziness. There is nothing in the record to indicate that this evidence

would have or could have been rebutted by any defense witness. Defense counsel, who

had copies of the doctors’ reports, decided to stipulate that Aydin suffered serious

physical harm, possibly in order to avoid the testimony of three physicians who would
                                                                                          -21-


discuss the injuries and their aftermath in detail. Given the unrebutted evidence the

State intended to introduce regarding Aydin’s injuries, we cannot say the decision to

stipulate was an unreasonable strategy or that it rose to the level of a substantial violation

of counsel’s essential duties to his client.

       {¶ 40} The fourth assignment of error is overruled.

                                    VI.        New Trial Analysis

       {¶ 41} Sevil’s fifth assignment of error states:

       THE FAILURE TO APPLY IN THE INSTANT CASE THE RULE SET

       FORTH BY THE UNITED STATES SUPREME COURT IN GRIFFITH V.

       KENTUCKY, 479 U.S. 314 (1987) AND ITS PROGENY THAT NEW RULES

       OF CRIMINAL PROCEDURE MUST BE APPLIED RETROACTIVELY FOR

       ALL CASES UNDER DIRECT REVIEW AS IT APPLIES TO OHIO’S

       SHIFTING OF THE BURDEN OF PROOF FROM THE DEFENDANT TO

       THE STATE FOR THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE

       WOULD VIOLATE THE DUE PROCESS CLAUSES OF THE FIFTH AND

       FOURTEENTH          AMENDMENTS              TO     THE   UNITED       STATES

       CONSTITUTION.

       {¶ 42} Sevil notes that the General Assembly amended the statute governing the

burden of proof regarding the affirmative defense of self-defense after his trial had

concluded but prior to our review. He contends that the amendment should be applied

and made retroactive and that his conviction should be reversed and the matter remanded

for a new trial.

       {¶ 43} This exact issue, along with the same arguments and cited case law, was
                                                                                         -22-


raised in co-defendant Izmir Koch’s direct appeal to this court. In that case, we stated

that the defendant was “not entitled to retroactive application of the burden shifting

changes by the legislature to Ohio’s self-defense statute, R.C. 2901.05, as a result of

H.B. 228.” State v. Koch, 2d Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶ 103. For

the reasons set forth in Koch, we find Sevil’s argument to be without merit.

       {¶ 44} The fifth assignment of error is overruled.



                                       VII.   Conclusion

       {¶ 45} All of Sevil’s assignments of error being overruled, the judgment of the trial

court is affirmed.



                                     .............



WELBAUM, P.J. and FROELICH, J., concur.




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Mathias H. Heck, Jr.
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