State v. King

[Cite as State v. King, 

.]

                                   THE COURT OF APPEALS OF OHIO
                                    FOURTH APPELLATE DISTRICT
                                           ROSS COUNTY


STATE OF OHIO,                                 :

        Plaintiff-Appellee,                    : CASE NO. 23CA7

        v.                                     :

DARRYL KING,                                   : DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                   :

_________________________________________________________________

                                          APPEARANCES:

Stephen P. Hardwick, Assistant State Public Defender, Columbus,
Ohio, for appellant1.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C.
Wells, Assistant Prosecuting Attorney, Chillicothe, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:1-31-25
ABELE, J.

        {¶1}     This is an appeal from a Ross County Common Pleas Court

judgment of conviction and sentence.                Darryl King, defendant below

and appellant herein, assigns two errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED BY FAILING TO ALLOW MR.
                 KING TO INTRODUCE EVIDENCE OF THE DECEDENT’S
                 THREAT TO HARM ANY FUTURE CELLMATE. EVID.R.
                 401, 402; 5.P. 59-61 (DAY 2).”

        1
        Different counsel represented appellant during the trial
court proceedings.
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                                                                      2

           SECOND ASSIGNMENT OF ERROR:

           “MR. KING RECEIVED INEFFECTIVE ASSISTANCE OF
           COUNSEL BECAUSE HIS TRIAL LAWYER DID NOT ARGUE
           THAT MR. SAPP’S STATEMENT THAT HE INTENDED TO
           HARM ANY FUTURE CELLMATES WAS ADMISSIBLE AS
           EVIDENCE OF PLAN, INTENT, AND MOTIVE UNDER
           EVID.R. 404(B), SIXTH AND FOURTEENTH AMENDMENTS
           TO THE UNITED STATES CONSTITUTION; T.P. 59-61
           (DAY 2).”


    {¶2}   In March 2022, a Ross County Grand Jury returned an

indictment that charged appellant with one count of murder in

violation of R.C. 2903.02, an unclassified felony, as a proximate

result of felonious assault.   Appellant entered a not guilty plea.

    {¶3}   At trial, Ross Correctional Institution (RCI) Corrections

Officer Andrew Lansing testified that on February 13, 2022, Inmate

Alex Sapp and appellant had been cellmates for approximately two

weeks in Unit 1A Cell 240 on the second floor.   Lansing believed

“they were happy.   Inmate Sapp was happy being in that cell.”   At

around 9:00 p.m., Lansing conducted the standing count to account

for all inmates and observed appellant lying on his bed and Sapp

“sitting on the toilet.”

    {¶4}   Later, when Inmate Sapp knocked on the cell door around
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                                                                     3
9:15 p.m., Officer Lansing walked upstairs to investigate:

    We open the door see what was going on. Inmate Sapp was
    yelling about I believe it was they were had an argument
    about a chair or something, but you know what I’m saying.
    That’s what I got out of that. Inmate Sapp said he didn’t
    want to live in the cell no more, so I gave him an option,
    I said look it’s nine fifteen p.m. We can’t move you. He
    wanted to move downstairs to an empty bed and we have that
    go on a lot.   I said, you have an option, you can wait
    until the morning, because I work first shift overtime in
    the morning I was going to work.     I said, you can wait
    until the morning and I would take you to unit staff and
    get you moved if you don’t want to live in the cell or I
    could send you to the Captain’s Office and you can refuse
    to lock and go to 5B.


    {¶5}   Officer Lansing explained that Inmate Sapp “chose to stay

in the cell and be moved in the morning to unit staff.”   When

Lansing spoke with Sapp, “he had a laundry bag white laundry bag

and the bed was stripped down . . . Inmate King stated that he was

just reading his book and wanted to read his book.   He was laying

[sic.] on the bed.”   Lansing told Sapp to “climb up on the top of

your bed, don’t talk to each other tonight, just go to sleep and

I’ll get you moved in the morning.   He climbed up on his bed and I

said, ‘do you want your blanket and sheets?’   He said, ‘no.’”

Lansing closed the door, and he returned to his downstairs post.
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     {¶6}   Thirty minutes later, at 9:45 p.m., Officer Lansing

looked into Cell 240, and “Inmate Sapp was sitting on the toilet

[and] Inmate King was sitting up in the bed [bottom bunk] having a

conversation.”     Lansing asked them, “if you’re good . . . [and]

Inmate Sapp, Inmate King both looked at me and I went downstairs.”

Lansing left at the end of his shift, and when he returned to the

facility the following morning at 6:00 a.m., Lansing learned of the

homicide and discovered the cell closed with the window covered.

     {¶7}   RCI Corrections Officer Kaitlin Truitt testified that she

worked a double shift on February 13, 2022 from 1:30 p.m. to 10:00

p.m. and from 10:00 p.m. to 6:00 a.m.     After she completed her

usual paperwork, “nothing was going on,” and the unit “was really

quiet.”     As Truitt approached Sapp and appellant’s cell, the

nameplate had fallen off the door, which is a common occurrence.

Truitt picked up the nameplate, noticed nothing out of the ordinary

in the cell, logged her range check, and then went into the break

area, maybe 15 feet from the door, with the door open.

     {¶8}   Around 10:45 p.m., Officer Truitt heard “what sound[ed]

like a kick on a door or something or a bang.”     Truitt conducted
Ross, 23CA7




                                                                 5
another range check, noticed that the Cell 240 door tag had fallen

off again, and “heard banging on a door from 240.”     Truitt did not

recognize the inmate in the cell window.     The inmate said, “Hey CO

I think you need to bring someone up here.”     At Cell 240, Truitt

observed an inmate “on the floor with blood all over his face.”

Appellant told Truitt that “he - the inmate laying on the floor

fell off his bunk and then the inmate that I was talking to just

kept saying please don’t spray me, please don’t spray me.”     Truitt

observed Inmate Sapp lying on the floor with “blood all over his

face.”     Truitt testified that officers are not permitted to open

cell doors alone on third shift, so she went to the desk to ask the

Captain’s Office how to proceed.     Officer Grant Stinchcomb called

for a nurse cart, opened the cell door, and “pulled the inmate

[appellant] out of the cell and put him on the wall to cuff up.”

At that point, they removed both appellant and Sapp from Cell 240

and transported Sapp to the hospital.     Truitt conceded on cross-

examination that she did not observe what occurred in Cell 240 that

evening.

    {¶9}    RCI Corrections Officer Grant Stinchcomb testified that
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                                                                       6
he worked a double shift on February 13, 2022, from 1:30 to 10:00

p.m. and 10:00 to 6:00 a.m.    On his second shift, he worked with

Officer Truitt in 1B.    At approximately 10:45 p.m., Stinchcomb

conducted his range check when Truitt approached and said, “an

inmate was injured and needed help.”     Stinchcomb stopped his range

check and went to 1A.    When Stinchcomb arrived at Cell 240, “Inmate

King was standing in the window with his hands up.”     King said “he

had not done anything,” and Stinchcomb asked him to move aside to

see the other inmate.    Stinchcomb observed the victim “on the floor

bloodied and nonresponsive.”    Although Sapp appeared to be

breathing, “he was pretty beat up.     He’s pretty battered . . .

bloodied.”

    {¶10} Officer Stinchcomb instructed Officer Truitt to call

their supervisor while he radioed for medical assistance.      After

the officers received permission to open Cell 240, they “got Inmate

King out of the cell.”    Stinchcomb “put him on the wall and put him

in cuffs” and “waited for back up.”    Truitt told Stinchcomb that

appellant said that Sapp “fell off a bunk.”     However, Stinchcomb

explained that he “could tell obviously that that’s not a fall from
Ross, 23CA7




                                                                 7
a bunk,” so Stinchcomb asked appellant what happened, and appellant

“told me that prior in that day they had an argument.    They had a

confrontation and . . . that confrontation may have gotten physical

before, I’m not sure.   He said that Sapp had hit him while he was

reading a book lying in bed.”

    {¶11} RCI Registered Nurse Lisa Ragland responded to the

medical emergency.   When she arrived at Cell 240, she looked

through the door and observed Sapp “on the floor between the urinal

and sink and the bunk beds.”    Ragland and other RCI personnel

performed CPR for 35-45 minutes while they waited for the EMS

squad.   Ragland described Sapp’s injuries:

    Sapp’s head was bloody and there was coagulated blood on
    the floor under his head with a lot of coagulated blood
    going off to the right side. Hie eyes were swollen black
    and blue. Behind his ears were black and blue. His ears
    were swollen. He had bruising to his face and there was
    like some contusions and abrasions around his head that
    were also bleeding . . . his breathing pattern was
    irregular. . . so instead of breathing in a normal pattern
    it was more like a . . . gasping pattern or he was only
    getting like six or seven breathes [sic.] a minute and
    that’s not enough to sustain life.

    {¶12} RCI Lieutenant Jordan Brabson testified that he is an on-

scene shift supervisor and, on February 13, 2022 at approximately
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                                                                       8
9:45 p.m., officers called him to Cell 240 for assistance.        When he

arrived, Brabson observed Inmate Sapp “lying on the floor . . .

covered in blood and . . . kind of gargling.”   Brabson heard

appellant say, “I woke up and found him like this.”     Brabson

photographed the cell, including the victim, waited until nursing

staff arrived, called for EMS, and assisted in CPR until EMS

arrived.   Brabson then secured the cell, took more photographs, and

hung paper over the window so other inmates would not look through

and “possibly fish out any evidence from underneath the door.”

After that, Brabson took appellant to receive medical attention and

photographed him, but did not ask any questions.

     {¶13} RCI Lieutenant Ben Murphy testified that on February 13,

2022, staff summoned him to Cell 240 where he changed Inmate Sapp

to his travel uniform and prepared him for transport.     Murphy

created a timeline, watched video footage, completed an incident

report, photographed appellant, and collected appellant’s shirt,

pants, shoes, and socks as evidence.   Murphy stated that he only

observed injuries to appellant’s hands.

     {¶14} Ohio State Highway Patrol Trooper Marlin Folden testified
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                                                                 9
that RCI called him to investigate the incident and dispatched him

to the hospital due to a “serious felonious assault. . . possibly

going to be a fatal incident.”    By the time Folden arrived at the

hospital, Sapp “had already been pronounced deceased.”    Folden

photographed Sapp’s body, swabbed his hands, and drove to RCI where

he met Trooper Sherri Wells and RCI investigators.    After Folden

photographed appellant, he and Wells photographed Cell 240 and its

contents.     Folden stated on cross-examination that when he told

appellant that Sapp died, “it wasn’t a shock or surprise that I

could see.”

    {¶15} Ross County Coroner’s Office Investigator David Russell

testified that, because any person who dies while in custody must

have an autopsy, he visited the Adena Regional Medical Center to

secure Inmate Sapp’s body.    Russell spoke to the nurse, doctor and

guards and photographed and secured the body for transport to

Montgomery County for a forensic autopsy.

    {¶16} RCI Lieutenant Christopher Williams testified that he

served as a corrections officer when summoned to Cell 240, where he

observed Inmate Sapp “on the floor covered in blood struggling to
Ross, 23CA7




                                                                      10
breathe.”     At approximately 1:15 a.m., Williams spoke with

appellant, collected appellant’s clothing, shoes and socks, and

delivered them to the investigator’s office.

     {¶17} Ohio State Highway Patrol Investigator Sherri Wells

testified that she investigated the incident along with Trooper

Folden.     Wells traveled to the prison around 1:00 a.m. and met with

RCI Investigator Brian Wellinghoff, who had collected evidence.

Wells observed video surveillance from Unit 1A and spoke with

Officer Truitt.     Wells observed appellant at about 2:40 a.m. and

did not observe any injuries to appellant other than “his knuckles

where the fingers fold, so the knuckles of like a fist area . . .

if the fingers were folded, it would be those knuckles.”

     {¶18} Trooper Wells also photographed Cell 240 and collected

Sapp’s clothing.     “There was blood over most of the clothing.   The

shirts were so saturated with blood that I had to take them to a

special area to allow them to hang to dry before they could even be

properly collected for keeping.”    Wells initially indicated

surprise at not finding blood on the bottom of appellant’s shoes

because Trooper Folden told her that he saw “what he thought was a
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                                                                     11
pattern in a couple of his photos and he showed those to me.”

Wells explained that she examined the shoes and “the pattern to me

appeared similar from the bottom of the shoe to the pattern on the

face.”   When Wells investigated why “there was blood on the top,

but not on the bottoms,” she learned that when appellant “was

removed from 1A and taken to Nine House, which is a complete walk

from the north side to the south side of the compound, that he was

walked there in these shoes and that there was snow on during the

time.”   Wells also collected the RCI incident reports and requested

a “full shakedown of the . . . cell.”   “[N]o contraband was found

consisting of any other weapons, any other drugs, or anything of

that . . . kind.”

     {¶19} Montgomery County Forensic Pathologist Susan Brown

testified that she photographed and examined Sapp’s body.   Brown

noted that Sapp had no hand injuries, but sustained multiple

bruises, abrasions, and lacerations, “at least four between his . .

. eyes, one on the right eyebrow, one on the right eyelid, two on

his right cheek right below his right eye and one on the ride side

of his upper lip.”   “He has multiple bruises on his nose and his
Ross, 23CA7




                                                                       12
nose is fractured.” “On the right side of his mouth . . . at the

corner . . . there is what we call a patterned injury.    It is an

abrasion or scrape of the skin that has a very distinct design or a

pattern . . . that is the same pattern is the object that was used

to make that injury.”    Brown explained, “there are multiple areas .

. . he also has that same pattern on his right cheek, on the right

side of his forehead, and on the right side of his scalp.”     Brown

described the pattern as “linear lines that are also evenly spaced

from one another and in some areas, they appear to be a portion of

the triangle and in other places appear to be just linear lines

again that are equally spaced between each other.”    Brown also

testified that Sapp sustained multiple bruises and injuries to both

ears, the left side of his head, and at least four separate

abrasions with bruising on Sapp’s left side of his scalp.     Brown

testified that it would require “significant force” to leave the

patterned marks on Sapp’s body and explained that the injuries

could be consistent with someone stomping on the victim’s head or

“any kind of blunt force trauma by whether it’s a . . . hand, or a

foot, or an object.”    Brown also acknowledged that the abrasions
Ross, 23CA7




                                                                 13
could be consistent with that side of the victim’s head rubbing on

a concrete floor with force applied to the other side.

     {¶20} Dr. Brown further testified about the internal bruising

of the victim’s muscles along his skull, “another marker of blunt

force injury.”   Brown observed fractures to Sapp’s left frontal and

parietal bones, a subarachnoid hemorrhage, and blood surrounding

the brain, which “again is a marker of injury.”    Brown found

another skull fracture at the base of the skull on the left side.

Brown also testified that the toxicology report found the

antidepressant sertraline within a normal limit.    Brown

characterized Sapp’s cause of death as “multiple blunt force

injuries . . . to his head.”

     {¶21} On cross-examination, when counsel asked Dr. Brown if the

toxicology report found synthetic cannabinoids, Brown replied that

the toxicology analysis did not include a test for that substance.

Brown explained that nothing in the course of the autopsy caused

her to believe that she should order further toxicology tests.

     {¶22} Appellant testified that he served time in prison because

three years before, he “got into a fight with a cop,” but as of
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                                                                        14
February 13, 2022, appellant “had twenty-eight days left.”      Alex

Sapp became appellant’s cellmate on February 1, and he did not know

Sapp before then.    When asked to describe his relationship with

Sapp, appellant stated: “Not good.     I was pretty leery of him.

When he became my cellie, he was tooken from another prison and

only been in Ross for thirty days and he was explaining to me that

he had troubles with the other prison, because of his case.”

      Appellant stated

      At first everything was normal.     I just kind of - - we
      didn’t really talk a lot the whole time he was in my cell.
      Nine days is a lot to get to know people, so that day after
      2:00 o’clock rec when we came back, Alex had gotten out -
      - had gotten K2 while he was out from 2:00 o’clock to 3:00
      o’clock rec and when I came back, he was noticeably messed
      up on drugs.


      {¶23} When asked to describe K2, appellant stated, “well in

prison . . . it’s pieces of paper people smoke and they get high

off of it.”   Appellant explained, “Alex use[d] two razor blades on

a wire, and we plug it in and touch the blades together and smoke

it.   They call it vaping and people . . . have strong reactions to

it all the time.    It’s like PCP.   People fall out on it.   They go

crazy.   Some people come out of their cell naked they fight CO’s
Ross, 23CA7




                                                                      15
all the time.”

     {¶24} Appellant explained that, because February 13, 2022 was

Superbowl Sunday, he prepared his “[commissary] store list . . .

and tr[ied] to get a little bit of food and everything to make for

the game.”    Appellant explained that he had given away his TV and

most of his clothes and hygiene products because he only “had

thirty days left” on his sentence.    He explained that he had a

“pretty good rapport” with Corrections Officer Lansing, “so he

chose to open my door even though it wasn’t my rec and let us go

down to the TV area, so that I could watch . . . the game.”

     {¶25} Appellant “notice[d] [Sapp] wasn’t even working on his

store list at all.    He was just . . . kind of smoking and . . .

pretty messed up sitting on the toilet.”     Appellant did not

interact with Sapp during the game.    When Officer Lansing shut down

the day room at 8:00 p.m., he and Sapp returned to their cell.

When appellant returned, “Alex was already in the cell smoking

again when I went into the cell and . . . closed the door at about

8:00 o’clock.”    Appellant organized his clothes and toiletries for

the next day and resumed reading his book.    However, Sapp “was
Ross, 23CA7




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still messed . . . he was smoking, and he was upset.”

    {¶26} Appellant explained that when he returned to the cell,

Sapp asked him if he discussed Sapp’s case with anybody.

    I told him that I never put anybody’s business to anybody
    else.   Prison is the kind of place everything you talk
    about discussed with everybody else, so anything you say
    is going to come to light with all the other inmates. I
    have four prison numbers and I just did thirty-six months
    in Ross Correctional, so I don’t talk about anybody’s case
    or anything at all to do with them with other people,
    because it always comes back on you and that’s what I told
    him, but he wasn’t . . . hearing it.

    {¶27} Appellant testified that, because Sapp “was upset in the

cell, he knocked on the door and called Lansing up there.”

    {¶28} Although Sapp had a restriction that prohibited his

assignment to a top bunk, when he arrived at Cell 240 officials had

already assigned appellant to the bottom bunk and Sapp to the top

bunk.   Appellant explained that “you cannot switch bunks on your

own” because you “would get a ticket for being out of place.”

Appellant stated that Sapp “had already started packing his bag and

was expecting him [Officer Lansing] to move him.    When they didn’t,

he started yelling at me and telling me that he was going to sell

our chair.    Somebody had offered him something for the chair in the
Ross, 23CA7




                                                                  17
cell or something.   I told him that they were probably just making

fun of him.   That they weren’t going to give him anything.”

Appellant stated that at this time, he “was crunched up . . . on

the bottom bunk right by the wall.”

    {¶29} Appellant stated that Sapp “was mad, and he was telling

me that he . . . double knotted his shoes” and Sapp “kind of made a

real big show out . . . of putting his shoes on.”     Appellant

explained that “in prison usually when somebody puts their shoes on

they want to fight you know, so he was yelling at me, double

knotting his shoes, and packing everything he owned into a bag.”

Appellant asked Sapp, “what’s your problem with me?     I’m not the

one doing this stuff and why are you packing your bag?”     Sapp said,

“when I’m done packing this bag I might either take the bottom bunk

or I don’t know what I’m going to do.”   Appellant explained to

Sapp, “if you touch me, I’ll yell for the cops, because they know

you’re acting stupid already and you’re going to go to the hole.”

    {¶30} Appellant testified that when Sapp put his shoes on,

appellant “grabbed [his] shoes and put them on too.     Just to kind

of say hey you got your shoes on and if you attack me, I’m not
Ross, 23CA7




                                                                       18
barefoot.     I have my shoes on too.   Kind of just posturing you

know.    Like I said, I had only been in the cell with him for nine

days and after he talked to Lansing, he he was telling me, well I

know you . . . talk to somebody else and I’m going to tell you, I

want the bottom bunk and they’re going give it to me.”

    {¶31} Appellant stated, “after I put my shoes on Alex sat down

on the toilet and I said, man look I really don’t want to fight you

man.”    Sapp said that he did not want to fight appellant either and

said he “was just upset about everything, and he’s worried about

the people in the dorm.”     Appellant told Sapp that he “shouldn’t

worry about people in the dorm that this ain’t that kind of block

and whatever jail he came from nobody’s going to be pressing you or

anything and and I just tried to talk him down really and calm him

down.”    Appellant stated that he sat on his bunk and Sapp sat on

the toilet when Lansing stopped again and “gave the thumbs up in

the door.”     Lansing told Sapp “to get up in his bed and go to sleep

and I was still sitting on my bed, so he - - we just - - I thought

that the conflict was resolved and that everything was cool.”

    {¶32} Appellant continued, “He starts to smoke again.     He was
Ross, 23CA7




                                                                     19
smoking again, so I had a big 5X coat, because I had give away my

blanket too, so I had a big 5X coat that I used just to cover up

with until - - until I was going home you know.”     Appellant stated,

“I kept my shoes on because he had his on too.”     Appellant tried to

give Sapp “a little bit of personal space.”     Appellant stated that

he talked to appellant “for a good thirty minutes” before he

covered up with his coat on his bunk.    He testified that Sapp “was

super calm saying that he just might not even move out the next

day.    He said that he always does this he’ll have a good thing

going and . . . he’ll ruin it before he even gets a good chance.

He said, he liked being my cellie and I never did anything to him

and that he was just worried about other people in the block and

things of that nature, so . . . I thought it was chill.     I thought

the moment had passed you know that the confrontation was over.”

       {¶33} Appellant testified:

       I thought it was over, but he had only been in my cell nine
       days, and I was a little bit leery of him, because he was
       still kind of jerky. You know his movements were jerky
       and he was smoking too, so I was still kind of leery, but
       I did think it was over yeah. I didn’t think we were going
       to fight . . . When I covered up with the coat like I
       said, he had started smoking before I covered up and I was
       just doing a few breathing exercises and stuff and he
Ross, 23CA7




                                                                   20
    stepped close to me and I sensed that he was close to me
    and it was dead quiet and just the hair stuck on the back
    of my neck and I flipped my coat off of me with my left
    arm and threw it against the wall and Alex was right in my
    face with his bloodshot red eyes and and grabbed me by my
    hair and yanked me out of the bunk. . . I was on my knees,
    and he had his hands in my hair and he wrapped his arm
    underneath my chin and lifted up and choked me out just as
    fast as as that.     I didn’t have the opportunity to do
    anything. I was just completely choked out that quick and
    then I woke up on the ground with my head facing the toilet
    and when I woke up I didn’t . . . even immediately remember
    that I was in a fight. . . I woke up and I was like I was
    confused, because I was on the floor and when I started
    moving around, he jumped back on my back.

    I was terrified. I was scared and . . . in a panic and
    stuff. I realized hey, I’m in a fight with my cellie and
    remembered he had just choked me out and when he jumped on
    my back, I started screaming.     I started screaming help
    and and and yelling for the CO’s and stuff and he was
    [inaudible] to get his hand around my mouth . . . and my
    neck and I started kicking behind me with my heel and my
    heel . . . my foot caught the crotch of his pants and kind
    of kicked him off of me a little bit and when we stood up
    we both kind of exchanged a few punches. Well, behind Alex
    was a chair on the front of the wall. The back of his leg
    caught the chair, and he sat down in the chair and I punched
    him in the face like ten times as hard as I could . . .
    seven or ten times, but they had no effect on him. They
    didn’t even stun him. The first few punches did absolutely
    nothing to him. Like I said, when people smoke K2 it’s
    like a PCP high.


    {¶34} Appellant explained that he then ran back to the door and

started to kick the door and yell for help when Sapp
Ross, 23CA7




                                                                     21
    came up behind me from the side of the toilet over my
    shoulder . . . and he grabbed . . . my neck again and Alex
    was a lot stronger than me and . . . he was really good at
    like grabbing you and twisting you around and like
    controlling your body like that . . . when he grabbed me
    over my shoulder with his arm around my neck and then he
    stepped in close behind me to where his knees were up under
    my butt, and he completely had control of me. . . I put my
    chin down . . . and he grabbed my face and . . . was saying,
    ‘I’m going to kill you, I’m going to kill you,’ . . . and
    I was trying to stomp on his toes and doing everything I
    could to get him off of me. Now, I smashed his head against
    the side of the door. I rubbed his head against the side
    of the thing. Doing everything I could to get him off of
    me. . . and he was squeezing . . . my face so hard that I
    didn’t . . . my jaws turn sideways and my teeth were
    cracking. . . I was scared to death. . . I kept thinking I
    was hearing keys . . . but they weren’t coming. . .
    eventually, his arm started shaking and his grip just gave
    out and I grabbed his wrist . . . with my hand and put my
    thumb underneath . . . of his shoulder and bumped his . .
    . legs with my hips and got him on my back and I flung him
    over my back as hard as I could onto his head. . . he
    attempted to rise, and I kicked him in the face a couple
    times. Two times with him getting up and the second kick
    knocked him out.

    {¶35} Appellant testified that fellow inmate Cody Cline looked

in and told him he would “yell out the window . . . you start

kicking the door.”   Appellant stated that, with his back to the

door so he could watch Sapp, he kept “donkey kicking” the door with

his heel and yelling for help for five or ten minutes.   Appellant

said he could tell Sapp “was having trouble breathing . . . and was
Ross, 23CA7




                                                                     22
coughing and choking,” so appellant turned Sapp on his side and

then resumed kicking the door.

     {¶36} When Officer Truitt arrived, appellant told her that Sapp

fell out of his top bunk so she would not mace the cell, which is

their standard protocol.   After Truitt returned to the cell with

Officer Stinchcomb, Stinchcomb asked appellant what happened and

appellant “told him that Alex attacked me while I was laying down

and that I fought him off and I need help.”   When appellant later

found out that Sapp died, he said he “was in shock.   I felt like my

whole life was over.   I was - - told them that I was twenty-eight

days at the door [28 days from the end of his prison sentence].      I

couldn’t believe what was happening.   I just felt in shock.”

     {¶37} On cross-examination, appellant acknowledged that at the

time of the incident he served time for aggravated possession of

methamphetamine, domestic violence, and the assault of a peace

officer.   Appellant also stated that he had seen Sapp smoke K2 at

least three times that day.   Appellant acknowledged that he is

6'1", but disputed institutional records that reflected his weight

as 220 pounds.   Appellant also testified that he did not recall
Ross, 23CA7




                                                                 23
telling Trooper Wells that he fought “for just a minute that he had

thrown down on him.”     Appellant disputed that he told Wells that he

had “already washed [his] hands and got most of the blood off,” but

acknowledged that he did not tell Wells that Sapp choked him

unconscious.

     {¶38} After the defense rested, appellee called Trooper Wells

as a rebuttal witness.     Wells testified that appellant told her

that he observed Sapp smoke K2, he had kicked the cell door for

about 30 minutes, and that he could not believe Sapp died.    Wells

stated that appellant told them Sapp hit him in the left side of

the face and slammed the back of his head, which is why their

photos focused on that area.     Wells said that appellant told her

that Sapp hit him a few times and “that he threw down on him and

that he punched him until he stopped.”    When Wells told appellant

that she planned to swab his hands, appellant “said he had already

washed most of the blood off, asked if he could refuse, and was

told no he could not refuse.”     Wells explained that Cell 240

contained a sink.   Wells also acknowledged that appellant told her,

“I have three kids and a Mom that is seventy-five and I’m going
Ross, 23CA7




                                                                   24
home in twenty-eight days.    Now, I’m looking at killing someone, he

wouldn’t stop fighting me.”

     {¶39} After deliberation, the jury found appellant guilty of

murder in violation of R.C. 2903.02, an unclassified felony.      The

trial court considered the pertinent sentencing statutes and

factors and sentenced appellant to serve a 15-year to life prison

term.   This appeal followed.

                                   I.

     {¶40} In his first assignment of error, appellant asserts that

the trial court erred when it did not allow him to introduce

evidence concerning the decedent’s previous non-specific threat to

harm any future cellmate.     Specifically, appellant contends that

evidence of a generalized threat to inflict harm to a future

cellmate is relevant to whether the threat-maker attempted to harm

appellant a few weeks later.

     {¶41} On the second day of the trial, during the cross-

examination of Trooper Wells, counsel asked, “As part of your

investigation, were you made aware of a conduct report on Inmate

Sapp from January 21, 2022.”     Wells replied, “Yes.”   Counsel then
Ross, 23CA7




                                                                  25
asked, “And what was the contents of that report?”   After appellee

objected, the trial court held a bench conference and the following

exchange occurred:

    The State: I’d argue relevance to a prior conduct report
    without any sort of foundation that it doesn’t involve the
    defendant or.

    Defense Counsel: (inaudible) There is a report that
    basically says he was directly threatening (inaudible).

    The State: Which I can see the potential argument about he
    - he didn’t threaten inmate. He threatened any inmate who.

    Defense Counsel: His cellmate.

    The State: Who would be placed in his cell.

    Defense Counsel: Correct.

    The State: So, he threatened a hypothetical person that
    had not happened yet. Secondly.

    The Court: When did this occur?

    Defense Counsel: January 22nd or 21st.

    The State: January 21st. Plus, I don’t think it was done in
    the presence of the defendant that he would be able to use
    that as evidence of self-defense or anything to form a
    reasonable belief.

    Defense Counsel: But the defendant was made aware of it.

    The State: I don’t think that.
Ross, 23CA7




                                                                    26
    The Court: When was he made aware of it.

    Defense Counsel: When Inmate Sapp told him why he there.
    He had just come off restrictions, but I don’t think I.

    The Court: What was your question exactly again?

    Defense Counsel: Was she made aware of the report which it
    was given to her.

    The State: Well, no.    You - - she answered then they
    (inaudible) then you asked her, what were the contents of
    the allegations.

    Defense Counsel: Yeah, what was the allegation in the
    report?

    The Court: and who made the allegation?

    The State: I believe it was a C.O.

    Defense Counsel: It was.

    The State: Who overheard Sapp say, well I going to.

    The Court: Alright.

    Defense Counsel: Sapp said it you’re right.

    The Court: I [am] going to sustain it again.


    {¶42} “ ‘[A] trial court is vested with broad discretion in

determining the admissibility of evidence in any particular case,

so long as such discretion is exercised in line with the rules of
Ross, 23CA7




                                                                   27
procedure and evidence.’ ”    State v. Jackson, 

(5th Dist.), quoting Rigby v. Lake Cty., 

(1991).    “Absent an abuse of discretion, this court may not reverse

a trial court’s decision with respect to the scope of cross-

examination.”    Calderon v. Sharkey, 

 (1982),

syllabus; State v. Moore, 

, ¶ 24 (4th Dist.).    “ ‘An

abuse of discretion is more than an error, it means that the trial

court acted in an “unreasonable, arbitrary, or unconscionable”

manner.’ ”    Matter of J.M., 

 (4th Dist.),

quoting State v. Kister, 

, ¶ 46 (4th Dist.), quoting

State v. Reed, 

 (4th Dist. 1996), citing

State v. Adams, 

 (1980).

       {¶43} As a general rule, all relevant evidence is admissible.

Evid.R. 402; State v. Russell, 

 (4th Dist.).

Evid.R. 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence.”    Evid.R. 401 and Evid.R.

402.    Evid.R. 611(B) states, “Cross-examination shall be permitted
Ross, 23CA7




                                                                    28
on all relevant matters and on matters affecting credibility.”

Further, the exposure of a witness’s motivation in testifying is a

proper and important function of the constitutionally protected

right of cross-examination.   See State v. Rapp, 

 (4th Dist. 1990); Delaware v. Van Arsdall, 

 (1986);

.

     {¶44} In the case at bar, appellant asserts that Sapp’s

threatening statement, given to a corrections officer and resulted

in a written misconduct report 23 days before the assault,

constitutes relevant evidence.   Appellee, however, disputes the

threat’s relevance because (1) no evidence exists to prove

appellant knew about the threat prior to the incident, (2) no

evidence exists to prove the threat involved appellant, and (3)

case law deems specific instances of a victim’s conduct irrelevant

if offered to show the victim was the aggressor pursuant to Evid.R.

405(B).   Appellee argues that any alleged comment the victim may

have made constituted a conditional threat regarding some

hypothetical future cellmate and occurred over three weeks before

the incident.
Ross, 23CA7




                                                                    29
     {¶45} Appellant cites State v. Marshall, 

 (4th

Dist.), that observed it “is well established that evidence of a

defendant’s threats, violence, or other obsessive behavior in the

months preceding a murder is probative of the defendant’s motive or

intent.”   Id. at ¶ 50, quoting State v. Brown, 

, ¶ 27

(3d Dist.).   Appellant also argues that even generalized threats

are admissible to show motive, plan, and intent if the assault

victim is in the class of people included in the threat, citing

State v. Nicely, 

.   In Nicely, the defendant arrived

at the victim’s house, brandished a gun, and made threats. This

court found the testimony relevant and admissible under Evid.R.

404(B) and noted that

     [the witness] testified that shortly before the fire,
     appellant came to his house intoxicated, waved a gun and
     threatened to kill the ‘M.F.’er.’ While the identity of
     the ‘M.F.’er’ to whom appellant referred was not
     definitively revealed, this evidence established that
     appellant was angry at someone that evening - angry enough
     to kill that person or, possibly, to burn down his home.

.

     {¶46} In addition, appellant cites State v. Brown, 2002-Ohio-

6765 (3d Dist.), in which a jury found the defendant guilty of the
Ross, 23CA7




                                                                       30
murder of her boyfriend.     The trial court admitted testimony from

witnesses regarding prior acts of violence and threats the

defendant made toward the victim and the victim’s former

girlfriends.    The Third District affirmed that “[t]he nature of

their relationship bore directly on whether she had a motive to

harm him or acted knowing that her actions would cause physical

harm.”   Id. at ¶ 27.    However, as appellee points out, Marshall,

Nicely, and Brown all involve a defendant’s statements, not a

victim’s statements, and therefore are of limited relevance to our

analysis.

     {¶47} Finally, in his reply brief appellant cites State v.

Roberts, 

 (1st Dist.) to support his argument that

Sapp’s January 21, 2022 generalized threat is a “time, mode or

situation threat.”      In Roberts, the First District upheld the trial

court’s decision to allow testimony from the victim that the

defendant raped her with a similar modus operandi approximately 18

years before.    Specifically, both rapes occurred in the kitchen of

the victim, and in both cases the defendant used a kitchen knife to

perpetrate the crime.     The court found similarities relevant to
Ross, 23CA7




                                                                 31
establishing Roberts’ modus operandi and for his identification as

the perpetrator.   Id. at ¶ 16.   The court found it “extremely

significant that, although Roberts attacked Green in 1980, he was

not released from prison until 2003.   And given that Price was

murdered in the fall of 2003, Roberts had been out of prison for

less than four years before committing this crime.”    Id. at ¶ 15.

Again, however, we observe that Roberts involved a defendant’s

statements and actions, not a victim’s generalized statement.

    {¶48} Appellee argues that in the case sub judice, appellant

failed to establish the relevance of the purported threat and cites

State v. Elkins, 

 (4th Dist.).   In Elkins, the trial

court improperly permitted the prosecution to elicit testimony from

the defendant’s wife that appellant shot his son 13 years before he

shot and killed his wife’s paramour.    Id. at ¶ 31.   We observed

that “[t]he other acts of the defendant must have such a temporal,

modal and situational relationship with the acts constituting the

crime charged that evidence of the other acts discloses purposeful

action in the commission of the offense in question.    The evidence

is then admissible to the extent it may be relevant in showing the
Ross, 23CA7




                                                                  32
defendant acted in the absence of mistake or accident.”   Id. at ¶

22, citing State v. Burson, 

 (1974), citing

State v. Moore, 

 (1948).

     {¶49} Thus, appellee argues that appellant failed to establish

the purported threat’s relevance because appellant failed to

establish the circumstances regarding time, mode, situation, and

connection to appellant.   In addition, as appellee observes, each

case also shows a defendant’s pattern of jealousy and

possessiveness toward a particular victim.   Moreover, appellee

points out that the Supreme Court of Ohio held, “threats made by a

defendant against a particular person with whom [a defendant] had a

quarrel sometime previously, were not admissible against him in his

trial for killing another person in a different quarrel, there

being no relation between the two instances.”   State v. Moore, 

 (1948).

     {¶50} Finally, appellee argues that, although a defendant’s

knowledge of a victim’s prior act or threat may be admissible in

evidence to prove a defendant’s fear of imminent danger, if the

defendant is aware of the statement or the threat, evidence of the
Ross, 23CA7




                                                                       33
statement or threat should not be admissible to show the victim

acted as the aggressor, as appellant argues.     Appellee also cites

State v. Steinhauer, 

 (4th Dist.), when the trial

court denied the admission of specific instances of the victim’s

prior violence, prior use and knowledge of weapons, aggressive

behavior when he consumed alcohol, and prior threats to business

associates.   Id. at ¶ 24.   This court observed that “a defendant is

allowed to introduce specific instances of the victim’s prior

conduct. . . to establish defendant’s state of mind.”     Id. citing

State v. Carlson, 

 (8th Dist. 1986), paragraph

one of the syllabus.   But “[t]hese events are admissible in

evidence, not because they establish something about the victim’s

character, but because they tend to show why the defendant believed

the victim would kill or severely injure him.”     Steinhauer, citing

Carlson.   However, “Evid.R. 405(B) precludes a defendant from

introducing specific instances of the victim’s conduct to prove

that the victim was the initial aggressor.”    

,

citing State v. Barnes, 

 (2002).     We held that,

“[t]he critical issue is what the defendant knew about the alleged
Ross, 23CA7




                                                                       34
victim at the time of the confrontation.”   

 citing State v.

Busby, 

 (10th Dist. Sept. 14, 1999).

     {¶51} In the case sub judice, although appellant may fall

within the general subset of “any inmate who would be placed in his

cell,” appellant did not allege and no evidence exists that at the

time of the incident appellant knew about the statement.     Thus, we

conclude that the trial court did not abuse its discretion when it

excluded evidence of the victim’s alleged general threat.

     {¶52} Moreover, and as more fully discussed under appellant’s

second assignment of error, even if, for purposes of argument, the

trial court should have admitted evidence of the victim’s prior,

generalized threat to harm future cellmates, in light of the

evidence adduced at trial the result would not have changed.     Here,

appellant claimed self-defense and asserted that the victim “jumped

on his back” and they exchanged punches, but the first few punches

“did nothing” so appellant “punched him seven to ten more times.”

However, the evidence adduced at trial reveals that appellant

inflicted severe harm to the victim, far beyond any acceptable

level of force necessary to repel any perceived threat.     The only
Ross, 23CA7




                                                                      35
injury appellant sustained appears to be to the knuckles of his

hands, whereas the victim succumbed to his injuries that included

multiple bruises, abrasions and skull fractures that resulted from

severe blunt force trauma.    To establish the elements of self-

defense, a defendant (1) must not be at fault in creating the

situation giving rise to the affray, (2) must have a reasonable

grounds to believe and an honest belief that the defendant was in

immediate danger of death or great bodily harm and the only means

of escape was by use of force, and (3) did not violate any duty to

escape to avoid the danger.    State v. Williford (1990), 

.    Most important here, a defendant is privileged to use

only force reasonably necessary to repel the attack.    Williford,

citing State v. McLeod (1948), 

.    In the case sub

judice, any reasonable person would conclude that the force

appellant applied in this situation far exceeded the force

necessary to repel the alleged attack.

    {¶53} Accordingly, based upon the foregoing reasons we overrule

appellant’s first assignment of error.

                                  II.
Ross, 23CA7




                                                                  36
     {¶54} In his second assignment of error, appellant asserts that

his trial counsel rendered ineffective assistance of counsel in

violation of his constitutional guarantees.    In particular,

appellant contends that his counsel failed to argue that the

decedent’s statement, that he intended to harm any future cellmate,

should have been admissible as evidence of plan, intent, and motive

under Evid.R. 404(B) and the Sixth and Fourteenth Amendments to the

United States Constitution.

     {¶55} The Sixth Amendment to the United States Constitution and

Article I, Section 10 of the Ohio Constitution provide that

defendants in all criminal proceedings shall have the assistance of

counsel for their defense.    The United States Supreme Court has

generally interpreted this provision to mean a criminal defendant

is entitled to the “reasonably effective assistance” of counsel.

Strickland v. Washington, 

 (1984).

     {¶56} To establish constitutionally ineffective assistance of

counsel, a defendant must show that (1) his counsel's performance

was deficient and (2) the deficient performance prejudiced the

defense and deprived the defendant of a fair trial.    See
Ross, 23CA7




                                                                 37
Strickland, 

; State v. Myers, 

;

State v. Powell, 

.   “Failure to establish

either element is fatal to the claim.”   State v. Jones, 2008-Ohio-

968, ¶ 14 (4th Dist.).   Moreover, if one element is dispositive, a

court need not analyze both.   State v. Madrigal, 

 (2000).

     {¶57} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing professional norms.’

”   Padilla v. Kentucky, 

 (2010), quoting

Strickland, 

.   Prevailing professional norms dictate

that “a lawyer must have ‘full authority to manage the conduct of

the trial.’ ”   State v. Pasqualone, 

, ¶ 24, quoting

Taylor v. Illinois, 

 (1988).

     {¶58} Further, “the performance inquiry must be whether

counsel's assistance was reasonable considering all the

circumstances.”   Strickland, 

.   Accordingly, “[i]n

order to show deficient performance, the defendant must prove that
Ross, 23CA7




                                                                       38
counsel's performance fell below an objective level of reasonable

representation.”    State v. Conway, 

, ¶ 95 (citations

omitted).     In addition, when considering whether trial counsel's

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance.”        Strickland,

.     Thus, “the defendant must overcome the

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.”     

   Additionally, “[a]

properly licensed attorney is presumed to execute his duties in an

ethical and competent manner.”     State v. Taylor, 

 (4th Dist.), citing State v. Smith, 

(1985).     Therefore, a defendant bears the burden of showing

ineffectiveness by demonstrating that counsel's errors were “so

serious” that counsel failed to function “as the ‘counsel’

guaranteed … by the Sixth Amendment.”     Strickland, 

; e.g., State v. Gondor, 

, ¶ 62; State v. Hamblin,

 (1988).

    {¶59} To establish prejudice, a defendant must demonstrate that
Ross, 23CA7




                                                                 39
a reasonable probability exists that “but for counsel's errors, the

result of the proceeding would have been different.    A reasonable

probability is a probability sufficient to undermine the outcome.”

Strickland, 

; e.g., State v. Short, 

; State v. Bradley, 

 (1989), paragraph three

of the syllabus; accord State v. Spaulding, 

(prejudice component requires a “but for” analysis).    “ [T]he

question is whether there is a reasonable probability that, absent

the errors, the factfinder would have had a reasonable doubt

respecting guilt.”   Strickland, 

.   Further, courts

ordinarily may not simply presume the existence of prejudice but

must require a defendant to establish prejudice affirmatively.

State v. Clark, 

, ¶ 22 (4th Dist.).     This court has

recognized that speculation is insufficient to establish the

prejudice component of an ineffective assistance of counsel claim.

E.g., State v. Tabor, 

 (4th Dist.); State v.

Jenkins, 

 (4th Dist.); State v. Simmons, 2013-

Ohio-2890, ¶ 25 (4th Dist.); State v. Halley, 

(4th Dist.); State v. Leonard, 

, ¶ 68 (4th Dist.);
Ross, 23CA7




                                                                     40
accord State v. Powell, 

.

     {¶60} Here, appellant contends that his trial counsel rendered

ineffective assistance when he failed to argue what appellant deems

to be the strongest theory to support the admission into evidence

of Sapp’s statement that he intended to harm any future cellmate.

Appellant characterizes admission of evidence of plan, intent, and

motive under Evid.R. 404(B) as the strongest theory, and alleges

that, if counsel had not failed to get this “critical information”

to the jury, there is a reasonable probability of a different

result.

     {¶61} Evid.R. 404(B) provides: “Evidence of any other crime,

wrong, or act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

accordance with the character.”   However, “[t]his evidence may be

admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.”

     {¶62} Appellant contends that the trial court implicitly

determined “there is evidence presented that tends to support that
Ross, 23CA7




                                                                    41
the accused person used the force in self-defense” when it

instructed the jury on self-defense.   State v. Messenger, 2022-

Ohio-4562, ¶ 20.   The burden regarding self-defense, established by

H.B 228 in 2019, is:

    A person is allowed to act in self-defense …. If, at
    the trial of a person who is accused of an offense that
    involved the person's use of force against another, there
    is evidence presented that tends to support that the
    accused person used the force in self-defense …, the
    prosecution must prove beyond a reasonable doubt that the
    accused person did not use the force in self-defense …
    *.

    R.C. 2901.05(B)(1).


    {¶63} As Messenger observes, the plain language of R.C.

2901.05(A) reflects that self-defense is an affirmative defense and

the burden of production is on the defendant.   If a defendant

produces sufficient evidence of self-defense, the prosecution has a

duty to overcome that evidence.   R.C. 2901.05(B)(1).   In Messenger,

at the close of the defendant’s jury trial, the trial court

provided the jury with a self-defense instruction that signaled the

trial court’s conclusion that Messenger put forward sufficient

evidence that he acted in self-defense when he killed the victim.
Ross, 23CA7




                                                                 42
The court continued, “[t]he guilty verdict means that the state met

its burden of persuading the jury beyond a reasonable doubt that

Messenger was not acting in self-defense when he killed [the

victim.]”   Id. at ¶ 26.

     {¶64} As appellee points out, a self-defense claim includes the

following elements:

     (1) that the defendant was not at fault in creating the
     situation giving rise to the affray; (2) that the defendant
     had a bona fide belief that he [or she] was in imminent
     danger of death or great bodily harm and that his [or her]
     only means of escape from such danger was in the use of
     such force; and (3) that the defendant did not violate any
     duty to retreat or avoid the danger.

State v. Barnes, 

 (2002).

     {¶65} “Evidence as to all elements of self-defense must be

presented at trial in order for a defendant to be acquitted, but to

overcome the claim, the state need only disprove one element of the

defense by proof beyond a reasonable doubt.”      State v. Ballein,

.      In particular, with regard to the second

element, a defendant must show he had a bona fide belief that he

was in imminent danger of death or great bodily harm and that his

only means of escape was the use of force.      State v. Goff, 2010-
Ross, 23CA7




                                                                  43
Ohio-6317, ¶ 36.   One component is a showing that a defendant used

“only as much force as is reasonably necessary to repel the

attack.”   State v. Jackson, 

 (12th Dist.); State

v. Carney, 

 (10th Dist.).     Thus, the degree of

force used must be warranted under the circumstances and

proportionate to the perceived threat.     State v. Kean, 2019-Ohio-

1171, ¶ 58 (10th Dist.).     Therefore, “ ‘[i]f … the amount of

force used is so disproportionate that it shows an “unreasonable

purpose to injure,” the defense of self-defense is unavailable.’ ”

State v. Bundy, 

 (4th Dist.), quoting State v.

Macklin, 

, ¶ 27 (8th Dist.).     See Martin v. State,

 (8th Dist.) (concluding “that Martin

voluntarily entered the encounter by proceeding to the police

station parking lot and that he exceeded the force reasonably

necessary for self-defense by using a deadly weapon”); State v.

Bender, 

 (defendant voluntarily entered fight

and used excessive force).



     {¶66} In the case sub judice, although appellant testified that
Ross, 23CA7




                                                                     44
he acted in self defense, “the credibility of witnesses is

primarily a determination for the trier of fact.”   State v. Banks,

 (8th Dist.), citing DeHass, 

,

at paragraph one of the syllabus.   “The trier of fact is best able

‘to view the witnesses and observe their demeanor, gestures[,] and

voice inflections, and use these observations in weighing the

credibility of the proffered testimony.’ ” 

 quoting State v.

Wilson, 

, ¶ 24, citing Seasons Coal Co., Inc. v.

Cleveland, 

 (1984).   Moreover, as appellee

points out, appellee proved to the jury that appellant used

unreasonable force.   Appellant testified that he “smashed [Sapp’s]

head against the side of the door . . . got him on my back and I

flung him over my back as hard as I could onto his head . . . he

attempted to rise, and I kicked him in the face a couple times.

Two times with him getting up and the second kick knocked him out.”

Again, Dr. Brown testified that appellant sustained no injuries,

except to his knuckles.   Injuries to appellant’s hands and no

injuries to the victim’s hands, along with significant evidence of

severe blunt force trauma to the victim’s head underscore the lack
Ross, 23CA7




                                                                         45
of proportionality in the case at bar.     Thus, the degree of force

appellant used is extremely disproportionate to the alleged

perceived threat.

     {¶67} Finally, to conclude that appellant’s trial counsel

performed ineffectively, appellant must establish prejudice.        In

other words, appellant must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”     

.   A

“reasonable probability” is more than “some conceivable effect,”

but less than “more likely than not [the error] altered the outcome

of the case.”   

.    A “reasonable probability” is a

probability sufficient to undermine confidence in the result of the

proceeding.   

; Williams v. Taylor, 

 (2000).

     {¶68} As appellee points out, appellant fails to show prejudice

other than to generally refer to a “reasonable probability of a

different result.”     However, our review of the evidence adduced at

trial reveals overwhelming evidence of guilt.     Forensic Pathologist

Dr. Susan Brown testified that the victim died of “multiple blunt
Ross, 23CA7




                                                                     46
force injuries . . . to his head.”    The victim received multiple

bruises, abrasions, and lacerations to his face, a fractured nose,

fractures and internal bruising to his skull, a subarachnoid

hemorrhage, and multiple injuries that contained a “very distinct

design or pattern.”   Brown testified that to leave patterned marks

on Sapp’s body would require “significant force,” consistent with

someone stomping on the victim’s head, or “any kind of blunt force

trauma by whether it’s a . . . hand, or a foot, or an object.”

Importantly, Brown emphasized that the victim had no injuries to

his hands.

    {¶69} Consequently, after our review of the trial record as a

whole, we believe that appellee adduced overwhelming evidence that

appellant brutally murdered his cellmate.   Based upon the evidence

adduced at trial, the jury could certainly question the credibility

of appellant’s testimony.   See State v. Purdin, 

(4th Dist.).   A jury, sitting as the trier of fact, may choose to

believe all or part or none of the testimony of any witness who

appears before it.    State v. Daniels, 

 (4th

Dist.)   Immediately after the assault, appellant told Corrections
Ross, 23CA7




                                                                 47
Officer Truitt that Sapp “fell off his bunk,” and told Corrections

Officer Brabson, “I woke up and found him like this.”    Later, at

trial, appellant testified that he assaulted Sapp in self-defense

and claimed that Sapp brutally attacked him and “choked him out,”

despite officer testimony and photographs that showed injuries only

to appellant’s hands.   Thus, because in the case sub judice the

jury could choose to believe that appellant fabricated his trial

testimony, the jury could also choose to disregard appellant’s

contention that he took these actions in self-defense.

     {¶70} It is well settled that debatable strategic and tactical

decisions may not form the basis of a claim for ineffective

assistance of counsel, even if a better strategy is available.

State v. Phillips, 

 (1995); State v. Lawrence,

 (12th Dist.).   In the case sub judice,

however, even if, for purposes of argument, trial counsel’s failure

to argue that Sapp’s statement was admissible as evidence of a

plan, intent or motive under Evid.R. 404(B) constituted ineffective

assistance, appellant nevertheless failed to establish a

“reasonable probability that, but for counsel’s unprofessional
Ross, 23CA7




                                                                     48
errors, the result of the proceeding would have been different.”

State v. Spaulding, 

, quoting 

.    Here, the record before us is replete with evidence that

appellant committed the charged crime.    Thus, pursuant to

Spaulding, we do not believe appellant demonstrated prejudice, even

if counsel’s failure to argue Evid.R. 404(B) arguably fell below

effective representation.    State v. Jones, 

(1st Dist.).    Thus, we do not believe trial counsel provided

deficient performance, nor do we find prejudice.

       {¶71} Therefore, we conclude that the impact of the trial

court’s decision to sustain appellee’s objection to testimony and

evidence relating to an allegation that the victim made a general

threat to “any inmate who would be placed in his cell,” does not

rise to the level of prejudice as defined by Strickland.      In light

of the overwhelming evidence of appellant’s guilt, we conclude that

no reasonable probability exists that appellant would have been

acquitted, but for defense counsel’s inability to persuade the

trial court to admit this evidence.    Thus, appellant fails to

establish that he received ineffective assistance of counsel.
Ross, 23CA7




                                                                   49
    {¶72} Accordingly, for all of the foregoing reasons, we

overrule appellant’s second assignment of error and affirm the

trial court’s judgment.



                                                                   JU

                                                              DGMENT

                                                              AFFIRME

                                                              D.
Ross, 23CA7




                                                                     50
                          JUDGMENT ENTRY

     It is ordered that the judgment be affirmed.   Appellee shall
recover of appellant the costs herein taxed.

    The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court
directing the Ross County Common Pleas Court to carry this judgment
into execution.

     If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.

     A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

    Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

                                   For the Court
Ross, 23CA7




                                                                  51
    BY:_____________________________
                                       Peter B. Abele, Judge

                         NOTICE TO COUNSEL
     Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.