[Cite as State v. Armstrong, 2016-Ohio-5610.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 15CA111
ALVIN ARMSTRONG

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Richland County Common
                                                Pleas, Case No. 2015-CR-145


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         August 22, 2016


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


BAMBI COUCH PAGE                                ROBERT GOLDBERGER
Prosecuting Attorney                            10 West Newlon Place
Richland County, Ohio                           Mansfield, Ohio 44902

By: DANIEL M. ROGERS
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA111                                                          2

Hoffman, J.


      {¶1}    Defendant-appellant Alvin Armstrong appeals his conviction entered by the

Richland County Court of Common Pleas on one count of possession of a deadly weapon,

in violation of R.C. 2923.131(B), a felony the first degree due to Appellant's previous

conviction for murder in Cuyahoga C.P. No. CR-13-577848. Plaintiff-appellee is the state

of Ohio.

                            STATEMENT OF THE FACTS AND CASE

      {¶2}    On June 7, 2014, Mansfield Correctional Institution Corrections Officer Mark

Bumpus was approached by Inmate Mani Rahman, who reported he had been threatened

by Appellant with a homemade knife, known as a "shank." Officer Bumpus went to

Appellant’s cell to investigate. Officer Bumpus observed Appellant standing in the middle

of the cell and another inmate, Deron Evans, was on the top bunk of a bed.

Officer Bumpus inquired of Appellant whether he had a shank, and Appellant denied the

same. Officer Bumpus then asked Corrections Officer Jeremiah Drake to check outside

of Appellant's cell window to see whether Appellant had thrown the knife outside.

      {¶3}    Officer Bumpus then viewed Appellant's cell through a small window,

observing Appellant "trying to find a place to hide something." He saw Appellant trying to

open the cell window, and when it did not open, Appellant seemed to "panic." Appellant

then looked to a mesh nylon laundry bag hanging on the cell door. Appellant placed the

shank in the laundry bag.

      {¶4}    Officer Bumpus then opened the cell door and proceeded to cuff Appellant.

In the process, Appellant's leg hit the laundry bag, and the shank dropped to the floor.
Richland County, Case No. 15CA111                                                          3


       {¶5}   Appellant was indicted on one count of possession of a deadly weapon

while under detention, in violation of R.C. 2923.131(B), a felony of the first degree due to

Appellant's previous conviction for murder in Cuyahoga C.P. No. CR-13 577848, the

conviction for which he was incarcerated.

       {¶6}   Following a jury trial, Appellant was convicted of the charged offense. The

trial court sentenced Appellant to four years in prison to be served consecutive to the

previous sentence for which Appellant was incarcerated, along with five years of post-

release control.

       {¶7}   Appellant appeals, assigning as error,

       {¶8}   “I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

COUNSEL UNDER THE SIXTH AMENDMENT BY THE FAILURE OF HIS ATTORNEY

TO EFFECTIVELY REPRESENT HIM.”

                                                 I.

       {¶9}   Appellant asserts he was denied the effective assistance of counsel due to

trial counsel's failure to object to witness’ speculation he was trying to hide something;

the trial court’s leading questioning of witnesses, and trial counsel's failure to present an

alternative defense.

       {¶10} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show trial counsel acted incompetently. See,

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

assessing such claims, “a court must indulge a strong presumption counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption, under the circumstances, the challenged action ‘might
Richland County, Case No. 15CA111                                                           4

be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052, citing Michel v. Louisiana,

350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

        {¶11} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct.

2052.

        {¶12} Even if a defendant shows counsel was incompetent, the defendant must

then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong,

the defendant must show “there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694, 104 S.Ct. 2052.

        {¶13} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989) quoting

Strickland at 697, 104 S.Ct. 2052. Accordingly, we will direct our attention to the second

prong of the Strickland test.

        {¶14} Appellant maintains counsel was ineffective in failing to object to Officer

Bumpus' testimony he was “trying to hide something.” Officer Bumpus then elaborated

Appellant was trying to open the window to his cell.

        {¶15} Appellant was charged with possession of a deadly weapon, in violation of

R.C. 2923.131(B), which reads, (B) "No person under detention at a detention facility shall
Richland County, Case No. 15CA111                                                          5


possess a deadly weapon." The statute does not require intent to hide or conceal; rather,

the statute only requires possession. Inmate Rahman reported Appellant had threatened

him with a shank. Officer Bumpus and Officer Drake both testified they saw Appellant put

something in the laundry bag and the item later was discovered to be a shank. The record

demonstrates ample evidence Appellant possessed the weapon herein; therefore,

Appellant has not demonstrated prejudice as a result of any alleged error in allowing the

testimony of Officer Bumpus. Appellant cannot satisfy the second prong of Strickland by

showing a reasonable probability exists the outcome would have been different but for

the admission of the challenged testimony.

       {¶16} Appellant further argues trial counsel was ineffective in failing to object to

the leading questions posed by the trial court herein in questioning Officer Bumpus.

However, failure to object to leading questions on direct examination does not constitute

ineffective assistance of counsel. State v. Jackson, 92 Ohio St.3d 436, 751 N.E.2d 946

(2001). Counsel may have declined to object to leading questions posed by the trial court

based upon tactical considerations. Further, Appellant has not demonstrated but for the

alleged error of trial counsel the outcome of the proceedings would have been different,

pursuant to the second prong of Strickland. Therefore, Appellant cannot demonstrate

counsel was ineffective in failing to object to the questions posed by the trial court.1

       {¶17} Finally, Appellant maintains trial counsel was ineffective in failing to argue

an alternative theory of defense maintaining another person actually possessed the

shank, specifically Inmate Evans or Inmate Rahman. However, Appellant did not testify




1The questions largely centered on the holes in the mesh nylon laundry bag in the
explanation of the shank dropping to the cell floor.
Richland County, Case No. 15CA111                                                        6


at trial, and the decision not to call either Evans or Rahman as witnesses is a tactical

decision made by counsel, not to be second guessed on appeal. Further, it is highly

unlikely either would have incriminated themselves by admitting possession of the shank.

The record demonstrates ample evidence Appellant possessed the weapon herein,

including the threat made by Appellant to Rahman with the shank. Officer Bumpus'

testified as to Appellant trying to open the window, panicking, and hiding the shank in the

laundry bag. Officer Drake then testified as to witnessing Appellant with the shank in his

hand.

        {¶18} Appellant cannot demonstrate, but for the alleged errors, the outcome of the

trial would have been otherwise; therefore, Appellant has not demonstrated the ineffective

assistance of counsel in failing to offer an alternative theory of defense.

        {¶19} Appellant's sole assignment of error is overruled.



By: Hoffman, J.

Farmer, P.J. and

Delaney, J. concur
