State v. New

[Cite as State v. New, 

.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.       15CA010754

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
BOBBIE LEE NEW                                         COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   11CR083078

                                 DECISION AND JOURNAL ENTRY

Dated: November 14, 2016



SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Bobby New, appeals the judgment of the Lorain County

Court of Common Pleas convicting him of murder. For the reasons that follow, we affirm.

                                                  I.

        {¶2}     This is the second time that this matter has come before us. In the first appeal, we

outlined the relevant facts as follows:

        On June 30, 2011, [New] was indicted for the murder of Dorothy Spencer, whose
        death occurred more than 35 years earlier. Ms. Spencer was last seen alive at
        9:15 p.m. on March 13, 1976, while en route to her mobile home located in
        Camden Township, Ohio after dining with some friends. At 2:11 a.m. on March
        14th, an anonymous female called the ambulance service line at Allen Memorial
        Hospital located in Oberlin, Ohio. The caller stated that she needed help and
        requested an ambulance. The caller provided directions to Ms. Spencer’s home,
        but hung up when the dispatcher asked her to identify herself. Medical personnel
        discovered Ms. Spencer alone, unconscious, and lying on her sofa with a gunshot
        wound to her head. An autopsy later revealed that she also had bruising on her
        neck and shoulders. Ms. Spencer died on March 17, 1976. The Lorain County
        Coroner ruled that her cause of death was a gunshot wound of the head
                                        2


The Lorain County Sheriff’s Office investigated the matter. At the time of her
death, Ms. Spencer was in a relationship for approximately six years with New,
who was married but estranged from his wife. Ms. Spencer and New lived
together at the mobile home for almost two years. Several of Ms. Spencer’s
friends and co-workers told investigators that she feared New, and that she had
told them that he beat her. Her co-workers further testified that she sometimes
arrived at work with injuries, which she attributed to beatings from New, and
occasionally she missed work due to such injuries. In 1971, New was charged
with assault with a deadly weapon, assault and battery and carrying a concealed
weapon arising out of an incident wherein he allegedly beat and threatened to kill
Ms. Spencer and her daughter. New pleaded guilty to the carrying a concealed
weapon charge and the rest of the charges were dropped at the request of Ms.
Spencer. From the beginning of the investigation, New was the primary suspect
in Ms. Spencer’s shooting.

New’s whereabouts the night of Ms. Spencer’s murder are unknown. Ms.
Spencer’s neighbor, who was 13 years old at the time, told investigators that she
saw New’s vehicle parked next to Ms. Spencer’s vehicle at the home around
10:00 p.m. or 11:00 p.m. New’s estranged wife, Rebecca New, told investigators
that he stopped by her home for a few minutes sometime after 11:00 p.m. on
March 13th. New’s sister and brother-in-law, Zula and Ezra Strader, who lived
across the street from Rebecca New, denied that New was at their home the night
of March 13th. A bartender [at the Honky Tonk bar] testified that New was with
her the night Ms. Spencer was shot from approximately 11:00 p.m. or 12:00 a.m.
until 4:45 a.m.

Due to Ms. Spencer’s condition upon medical personnel’s arrival and because the
home was not equipped with telephone service, investigators concluded that the
anonymous telephone call that requested an ambulance had to originate from a
different location. While there was no firearm found near Ms. Spencer or in the
home, a subsequent search found a box for a Colt .38 revolver that contained two
bullets. The gun’s last owner, Charles Bogdanowitz, a friend of New’s, loaned
the gun to him late in 1975. New never returned the gun to Bogdanowitz. A
spent shell casing was recovered from the sofa, which was later determined to
match the bullets found in the box. The gun itself was never found.

Ms. Spencer’s son, Alfred Lilly, told investigators in 1976 that he received a
message that New wanted to speak with him. On April 12, 1976, New allegedly
approached Mr. Lilly and told him that when Lilly got out of the Army, if New
was not in jail, he would tell Lilly how his mother was killed. Mr. Lilly died in
1997. There is no evidence that New ever had any further discussions with Mr.
Lilly about his mother’s death.

The case was first presented to the Lorain County Grand Jury in May 1976.
Charles Bogdanowitz testified before the Grand Jury about the gun that was
loaned to New. Both Zula and Ezra Strader also testified in front of the Grand
                                                3


       Jury. The Straders both testified that New was not at their home the night Ms.
       Spencer was shot. Mrs. Strader testified that she did not recall placing or
       receiving any telephone calls that night. Both Straders testified that their two
       sons, ages 17 and 13, were home that night. Investigators never questioned the
       Straders’ sons. The Grand Jury returned a no bill, thus, refusing to indict New for
       the murder of Ms. Spencer.

       Investigators traced the telephone calls from the Strader residence. The trace
       revealed that the anonymous telephone call to the hospital originated from the
       Straders’ phone. Zula Strader was the only female who resided in the home at the
       time, and fit the description of the caller as a woman in her 30’s. It is unclear
       whether this information about the trace was obtained by the State (or police)
       before or after the case was presented to the Grand Jury. The Straders were not
       confronted with the information that the telephone call originated from their
       home. Both Straders subsequently died. The investigation became a cold case
       until 2010.

       In 2010, the son of Ezra and Zula Strader, Perry Strader, contacted the Lorain
       County Sheriff’s Department with information about Ms. Spencer’s death. He
       stated that he awoke the night of March 13th to find his mother in his bedroom
       closet with a flashlight looking through a telephone book. Mrs. Strader would not
       tell him what was going on. He later heard his mother make a call from the
       telephone in the living room, but could not hear what was said. Perry Strader
       testified that he thought something was wrong, so he went out to the living room
       and saw his parents and New. He asked what was happening, to which New
       eventually replied that he argued with Ms. Spencer, “slapped [her] around” and
       eventually shot her. He assisted his uncle by giving him $60 and a winter coat.
       Based on the information from Perry Strader, the Lorain County Sheriff’s Office
       reopened the investigation into Ms. Spencer’s death.

       Perry Strader testified that his parents raised him to “protect family at all costs.”
       He testified that even if investigators had interviewed him in 1976, he would not
       have told them what he knew unless his parents instructed him to reveal the
       information. He waited until his last surviving parent, Zula, died in 2010 before
       approaching investigators with the information as he knew his parents had
       perjured themselves in their Grand Jury testimony.

State v. New, 9th Dist. Lorain No. 12CA010305, 

 (“New I”).

       {¶3}   After police received this information from Perry, charges against New were

again presented to the grand jury. This time, the grand jury indicted New on one count of

murder in violation of R.C. 2903.02(A). New moved to dismiss the indictment on the basis of

pre-indictment delay. After the trial court granted New’s motion and dismissed the matter, the
                                                 4


State appealed, arguing that the 35-year delay between the killing and the indictment was

justified. We agreed with the State and reversed the trial court’s judgment. In doing so, we

stated as follows:

       [T]his Court finds that the trial court erred when it found that [Perry] was not an
       “unavailable” witness in 1976 and that New could have been prosecuted and
       convicted in 1976 using the same evidence that was available to investigators at
       that time. Accordingly, the trial court erred in finding that the State did not justify
       the reason for the 35-year delay in indicting New. The State’s second assignment
       of error is sustained.

New I at ¶ 26.       We also declined to address the State’s first assignment of error, which

challenged the legal standard that the trial court applied, as moot. Id. at ¶ 27. Accordingly, we

declared that “[t]he judgment of the Lorain County Court of Common Pleas granting New’s

motion to dismiss is reversed and the matter is remanded for further proceedings consistent with

the foregoing opinion.” Id. at ¶ 28. New subsequently filed a motion to reconsider with this

Court, which we denied by judgment entry.

       {¶4}    After the matter was remanded, New filed a memorandum asking that the trial

court again consider the issue of pre-indictment delay. He contended that our reversal of the trial

court’s previous judgment on this issue did not foreclose further consideration of it. Rather, New

argued that our judgment required the trial court to determine whether the State’s reason for the

delay outweighed the prejudice to New.          The State opposed New’s interpretation of our

judgment, arguing that we previously considered the balancing of prejudice and justification and

that law of the case doctrine precluded further consideration of the issue. The trial court rejected

New’s interpretation of our previous judgment and found that “[n]o further issues remain with
                                                 5


respect to [New]’s motion to dismiss.” New asked that the trial court reconsider this decision,

but the trial court also denied that request.1

        {¶5}    New also renewed his motion to dismiss the indictment due to the spoliation of

evidence, which was originally filed before the first appeal. One basis for this motion was that

police failed to keep contact information or other identification records, such as a last name, for a

potential witness who was only identified as “Butch.” According to a police report exchanged

during discovery, Butch told police that he saw New at the Honky Tonk bar on the night of the

murder. The trial court denied New’s motion to dismiss on the basis of spoliation, reasoning that

Butch’s potential testimony would merely be cumulative since other alibi witnesses would testify

to the same facts. The trial court also found that there was no bad faith in the State’s failure to

preserve identification information for Butch.

        {¶6}    The matter proceeded to a jury trial after which New was convicted of murder.

The trial court subsequently imposed a prison term of 15 years to life. New filed this timely

appeal, which presents four assignments of error for our review.

                                                 II.

                                       Assignment of Error I

        The lower court erred and denied the appellant due process of law under the
        Fourteenth Amendment to the United States Constitution when it failed to
        conduct the required weighing of prejudice and determine that the
        appellant’s prosecution should be barred due to pre-indictment delay.

        {¶7}    In his first assignment of error, New attempts to re-litigate the issue of pre-

indictment delay, which we previously addressed in New I. Because law of the case doctrine




        1
          New renewed his motion to dismiss for pre-indictment delay a second time on the eve
of trial. The trial court again denied the motion on the first day of trial.
                                                 6


precludes further consideration of this issue, we decline to address the merits of New’s

contention.

       {¶8}     “The law of the case doctrine ‘provides that the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both the trial and the reviewing levels.’” Neiswinter v. Nationwide Mut. Fire Ins.

Co., 9th Dist. Summit No. 23648, 

, quoting Nolan v. Nolan, 

 (1984). Accordingly, “[a]bsent extraordinary circumstances, such as an intervening decision

by the Supreme Court, an inferior court has no discretion to disregard the mandate of a superior

court in a prior appeal in the same case.” Nolan at syllabus; see also Hubbard ex rel. Creed v.

Sauline, 

 (1996) (stating that the law of the case doctrine “precludes

a litigant from attempting to rely on arguments … that were fully pursued, or available to be

pursued, in a first appeal. New arguments are subject to issue preclusion, and are barred.”). The

Supreme Court of Ohio has outlined the basis for this rule as follows:

       [T]he rule is necessary to ensure the consistency of results in a case, to avoid
       endless litigation by settling the issues, and to preserve the structure of superior
       and inferior courts as designed by the Ohio Constitution. In pursuit of these
       goals, the doctrine functions to compel trial courts to follow the mandates of
       reviewing courts.

.

       {¶9}     In New I, we explicitly determined that the State’s reason for the 35-year delay

was justified and, as a result, that the trial court’s original judgment granting New’s motion to

dismiss for pre-indictment delay was reversed. See New I at ¶ 28. The trial court had no

discretion to vary that mandate. See Nolan at syllabus. As a result, we determine, under the law

of the case doctrine, that the trial court properly declined New’s invitation to reconsider the issue

of pre-indictment delay after we remanded the matter.
                                                7


       {¶10} Accordingly, we overrule New’s first assignment of error.

                                    Assignment of Error II

       The appellant was denied due process of law and a fair trial as guaranteed by
       the Fourteenth Amendment to the United States Constitution due to
       spoliation of exculpatory evidence occasioned by pre-indictment delay.

       {¶11} In his second assignment of error, New argues that the trial court erred by denying

his motion to dismiss the indictment due to the spoliation of materially exculpatory or potentially

useful evidence. We disagree.

       {¶12} Initially, we must outline the contours of our review. On appeal, New frames this

assignment of error as implicating pre-indictment delay. However, the motion that he filed in the

trial court regarding the spoliation of evidence does not refer to pre-indictment delay.

Accordingly, we do not consider this motion within the context of pre-indictment delay, but

rather based on concepts of due process and fundamental fairness.

                                      A. Standard of Review

       {¶13} A trial court’s ruling on a pretrial motion to dismiss a criminal indictment is

subject to a mixed standard of review. See State v. Clemons, 4th Dist. Highland No. 12CA9,

 (“Appellate review of a trial court’s decision regarding a motion to dismiss

involves a mixed question of law and fact.”). “We review a trial court’s legal conclusions in

ruling on a pretrial motion to dismiss criminal charges de novo.” State v. Wilson, 10th Dist.

Franklin No. 13AP-205, 

, citing State v. Saxon, 9th Dist. Lorain No.

09CA009560, 

, ¶ 5. However, “[w]e accord due deference to the trial court’s

findings of fact if supported by competent, credible evidence[.]” Clemons at ¶ 6.
                                                8


                           B. Spoliation of Evidence in Criminal Cases

       {¶14} “The Due Process Clause of the Fourteenth Amendment to the United States

Constitution protects a criminal defendant from being convicted when the State either fails to

preserve materially exculpatory evidence or destroys, in bad faith, potentially useful evidence.”

State v. McClain, 2d Dist. Montgomery No. 26764, 

. Consequently, “the

suppression of exculpatory evidence that is material to guilt or punishment violates due process

without respect to whether the [S]tate acted in bad faith.” (Emphasis sic.) State v. Jalowiec, 9th

Dist. Lorain No. 14CA010548, 

. However, “[w]hen the State fails to

preserve evidence that is merely ‘potentially useful,’ a defendant must demonstrate that the

[S]tate acted in bad faith.” (Emphasis added.) 

 quoting Arizona v. Youngblood, 

 (1988); see also State v. Geeslin, 

, 

, ¶ 9-10.

       {¶15} When considering New’s arguments, we are mindful that “[e]vidence is

‘materially exculpatory’ if it (1) possesses ‘an exculpatory value that was apparent before the

evidence was destroyed’ and (2) is ‘of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.’”           McClain at ¶ 21, quoting

California v. Trombetta, 

 (1984). Conversely, “[p]otentially useful evidence

indicates that the evidence may or may not have incriminated the defendant.” State v. Durnwald,

, 

 (6th Dist.). To properly consider the import of the

destruction of potentially useful evidence, we note that “[t]he term ‘bad faith’ generally implies

something more than bad judgment or negligence [and] imports a dishonest purpose, moral

obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will

parking of the nature of fraud. It also embraces actual intent to mislead or deceive another.”
                                                 9


(Internal citations and quotations omitted.) State v. Powell, 

, 2012-Ohio-

2577, ¶ 81.

       {¶16} New challenges the trial court’s denial of his spoliation of evidence claim on three

bases: (1) that it applied the wrong legal standard; (2) that it erroneously found that Butch’s

potential testimony was cumulative and not materially exculpatory; and (3) that it erroneously

found that the failure to preserve evidence regarding Butch did not reflect bad faith on the State’s

part. We consider, and reject, each of these bases in turn.

                    1. The Trial Court Applied the Correct Legal Standard.

       {¶17} The trial court’s judgment entry denying New’s spoliation of evidence claim

reflects that it properly applied the legal standard for such claims in criminal cases. The trial

court correctly noted that the destruction of materially exculpatory evidence results in a denial of

due process regardless of the existence of bad faith and that the destruction of potentially useful

evidence only results in such a denial where the defendant proves bad faith. This standard is

entirely consistent with the mandates handed down by the United States Supreme Court and the

Supreme Court of Ohio and neither the trial court nor this Court can alter those mandates. See

McClain, 

 (rejecting the defendant’s argument to apply different standard

to spoliation of evidence claim because the court “lack[ed] the authority to alter the burden of

proof mandated by the Ohio Supreme Court and United States Supreme Court precedent”).

Consequently, we conclude that the trial court did not apply the wrong legal standard to New’s

spoliation claim.

                    2. Butch’s Testimony Was Not “Materially Exculpatory.”

       {¶18} The trial court found that Butch’s potential testimony was not materially

exculpatory on the basis that there was other comparable and reasonably available evidence. In
                                                 10


doing so, the trial court identified two other witnesses, Linda Fair and Patricia Lambert, who

could offer testimony that was similar to Butch’s potential testimony. After review of the record,

we conclude that the trial court did not err in this determination.

       {¶19} Mrs. Fair, a patron, and Mrs. Lambert, the bartender, were both at the Honky

Tonk bar on the night of the murder into the early morning hours of the next day. A police

report reflects that Mrs. Fair stated to police that she saw New at the bar on the night of the

murder but was uncertain of the exact time. Butch’s statement to police was nearly identical to

Mrs. Fair’s statement. While there was no identifying information for Butch, Mrs. Fair’s full

name and work address were provided in the police report.

       {¶20} After the indictment was issued in this matter, Mrs. Lambert learned of the

situation and contacted one of New’s attorneys regarding the night of the murder.              She

subsequently subjected herself to a videotaped deposition during which she testified that she saw

New come into the Honky Tonk bar sometime between 11:00 p.m. and midnight. She also said

that New stayed at the bar until closing time, which was approximately 2:45 a.m., and then went

to get breakfast with her and two other bar patrons.

       {¶21} In light of Mrs. Fair’s statement to police and Mrs. Lambert’s deposition

testimony, the trial court did not err in determining that Butch’s potential testimony was

cumulative. Mrs. Fair, Mrs. Lambert, and Butch could all testify to similar facts regarding the

night of the murder – namely, that New was seen at the Honky Tonk bar. And, since Mrs. Fair’s

full name and work address were made available, as well as Mrs. Lambert’s deposition

testimony, the trial court did not err in determining that comparable evidence to Butch’s potential

testimony was reasonably available. As a result, we determine that the trial court properly found

that Butch’s potential testimony was not “materially exculpatory.” See State v. Purdon, 

App.3d 217, 219 (12th Dist.1985) (determining that the defendant was able to obtain comparable

evidence by other reasonably available means because he could have had obtained a different

blood alcohol test and challenged the testing procedures used by the State).

                               3. New Did Not Establish Bad Faith.

       {¶22} Our conclusion on this point does not end our inquiry. Even if not materially

exculpatory, Butch’s potential testimony was “potentially useful” as it did support New’s alibi

defense. See Durnwald, 

, 

 (determining that

destroyed videotape was potentially useful because it “may have supported appellant’s version of

his actions”). As a result, New had the burden to establish that the State’s failure to preserve

information relating to Butch was done in bad faith.     See Powell, 

, 2012-

Ohio-2577, at ¶ 77.

       {¶23} On appeal, New argues that the trial court erred in finding no bad faith on the

State’s part because “[i]t is hard to imagine that an officer investigating a suspect would receive

information of an alibi and not bother recording that witness’s information absent bad faith.”

New fails to cite to any relevant legal authority supporting this speculative position. See App.R.

16(A)(7). Rather than further develop his argument, New asks that we infer the existence of bad

faith merely on the basis that Butch’s information was not preserved. We decline to do so and

determine that the trial court did not err in finding that New failed to establish the existence of

bad faith. See State v. Franklin, 2d Dist. Montgomery No. 19041, 

, ¶ 48

(determining that the defendant failed to present sufficient evidence of bad faith in the State’s

destruction of the crime scene because the “lack of a credible explanation” for the scene’s

destruction was only evidence of “bad judgment or negligence,” not a due process violation); see

also State v. Smith, 2d Dist. Montgomery No. 20247, 

 (“The [S]tate has no
                                                12


duty to gather exculpatory evidence.”). We also note that the police report does not omit all

information regarding a potential alibi defense. Indeed, the report refers to Mrs. Fair’s statement,

as well as her full name and contact information. The inclusion of such information cuts against

New’s position that the exclusion of more complete information regarding Butch was done out of

bad faith in an attempt to prevent the discovery of exculpatory evidence.

       {¶24} In sum, we determine that the trial court did not err by denying New’s motion to

dismiss the indictment due to the spoliation of evidence. Accordingly, we overrule New’s

second assignment of error.

                                    Assignment of Error III

       The appellant was denied due process of law as the verdict and judgment
       were based upon legally insufficient evidence.

       {¶25} In his third assignment of error, New asserts that the State failed to present

sufficient evidence to support his murder conviction. Specifically, he contends that there is

insufficient evidence in the record to support a finding that New acted purposely when he shot

Ms. Spencer. We disagree.

       {¶26} A sufficiency challenge to a criminal conviction presents a question of law, which

we review de novo. State v. Thompkins, 

 (1997). In carrying out this

review, our “function … is to examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks, 

 (1991), paragraph two of the syllabus.

After such an examination and taking the evidence in the light most favorable to the State, we

must decide whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” 

 Although we conduct de novo review when considering

a sufficiency challenge, we “‘neither resolve evidentiary conflicts nor assess the credibility of
                                                  13


witnesses, as both are functions reserved for the trier of fact.’” State v. Jarvis, 9th Dist. Lorain

No. 14CA010667, 

, quoting State v. Jones, 1st Dist. Hamilton Nos. C-

120570, C-120571, 

.

       {¶27} R.C. 2903.02(A) relevantly states that “[n]o person shall purposely cause the

death of another[.]” The Revised Code provides that “[a] person acts purposely when it is his

specific intention to cause a certain result, or, when the gist of the offense is a prohibition against

certain conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is his specific intention to engage in conduct of that nature.”             Former R.C.

2901.22(A).2 When assessing the evidence regarding New’s mental state in this matter, we note

the following:

       Intent need not be proven by direct testimony. The specific intent to kill may be
       reasonably inferred from the fact that a firearm is an inherently dangerous
       instrument, the use of which is likely to produce death. Further, the act of
       pointing a firearm and firing it in the direction of another human being is an act
       with death as a natural and probable consequence.

(Internal citations and quotations omitted.) State v. Elwell, 9th Dist. Lorain No. 06CA008923,

.

       {¶28} Here, Perry testified that around 2:00 a.m. on March 14, 1976, he went into the

living room of his house where he found his parents as well as New. Perry disregarded his

parents’ instructions to go back to his bedroom and instead asked what was wrong. At that time,

New said that he had gotten into an argument with Ms. Spencer, “smacked her,” and then “shot

her.” Ms. Spencer was discovered around that time at her trailer with a gunshot wound to her



       2
          S.B. 361, effective March 23, 2015, amended the wording of this provision. Because
this matter predates S.B. 361’s effective date, we apply the former version of R.C. 2901.22(A).
Nevertheless, we note that the amendment to the provision’s definition of “purposely” did not
alter the substance of the provision.
                                                14


head, which the Coroner concluded was the cause of her death. Police subsequently matched the

shell casing found at the scene to the type of gun that New had previously borrowed from one of

his friends. Taking this evidence in a light most favorable to the State, we conclude that it

offered sufficient evidence to prove that New purposely shot Ms. Spencer in her head, which

caused her death. See State v. Marshall, 

, 

 (1st Dist.)

(determining that there was sufficient evidence to support finding that defendant acted purposely

when killing the victim because evidence demonstrated that the defendant shot the victim in the

head).

         {¶29} Accordingly, we overrule New’s third assignment of error.

                                     Assignment of Error IV

         The appellant was denied effective assistance of counsel as guaranteed by the
         Sixth and Fourteenth Amendments to the United States Constitution.

         {¶30} In his fourth assignment of error, New claims that he received ineffective

assistance of counsel because his trial counsel failed to request a jury instruction for the lesser-

included offense of involuntary manslaughter. We disagree.

         {¶31} To establish ineffective assistance of trial counsel, a defendant must show that his

trial counsel’s performance was deficient and that the deficient performance affected the

outcome of trial.     Strickland v. Washington, 

 (1984).          Trial counsel’s

performance is deficient only where it falls “below an objective standard of reasonable

representation.” State v. Bradley, 

 (1989), paragraph two of the syllabus. In

assessing trial counsel’s performance, we “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” 

,

citing Michel v. Louisiana, 

 (1955). This Court has previously noted that “‘[i]n

Ohio, there is a presumption that the failure to request an instruction on an lesser-included
                                                15


offense constitutes a matter of trial strategy[.]’” State v. Burks, 9th Dist. Summit No. 27423,

, ¶ 7, quoting State v. Hernon, 9th Dist. Medina No. 3081-M, 

,

*4 (Mar. 21, 2002). Here, New has not identified anything in the record to show that his trial

counsel’s failure to request an involuntary manslaughter instruction “was anything other than a

tactical election to seek an acquittal rather than a conviction on the lesser-included offense.”

State v. DuBois, 9th Dist. Summit No. 21284, 

, ¶ 6. Consequently, we conclude

that New has failed to establish that his trial counsel was deficient and that he received

ineffective assistance of counsel. See Burks at ¶ 7.

       {¶32} Accordingly, we overrule New’s fourth assignment of error.

                                                III.

       {¶33} Having overruled all of New’s assignments of error, we affirm the judgment of

the Lorain County Court of Common Pleas.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                               16


       Costs taxed to Appellant.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT




HENSAL, J.
CONCURS IN JUDGMENT ONLY.

CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶34} I would overrule the second assignment of error regarding the spoliation of

evidence based on the law of the case doctrine, as all of these issues relate to alleged prejudice

from preindictment delay.


APPEARANCES:

ROBERT A. DIXON, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA GUERRIERI, Assistant Prosecuting
Attorney, for Appellee.