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

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

SEVIL SHAKHMANOV 

Defendant-Appellant 

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Appellate Case No. 28009 

Trial Court Case No. 2016-CR-1987/5 

(Criminal Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 8th day of November, 2019. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio 

45402 

 Attorney for Defendant-Appellant 

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

 

TUCKER, J. 
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{¶ 1} Defendant-appellant Sevil Shakhmanov appeals from his conviction for 

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

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

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

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

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

follow, we affirm. 

I. Facts and Procedural History 

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

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

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

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

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

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

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

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

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

events that occurred when Aydin arrived at the Ameripro offices:

2

 

1 Sevil’s brothers Mustafa Shakhmanov and Sobir Shakhmanov were also involved in the 

altercations underlying this appeal. For ease of reference, we will refer to the all three 

by their first names. 

2 Koch involved the direct appeal of Baris Koch, another individual involved in the 
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 Surveillance cameras located outside the Ameripro office recorded 

the encounter between Aydin and members of the Shakhmanov and Koch 

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

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

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

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

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

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

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

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

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

standing. 

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

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

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

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

moved with him. After the apparent verbal disagreement continued there 

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

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

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

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

 

underlying altercations. Because Baris shares the same last name as his two brothers, 

Izmir and Murad, we will also refer to them by their first names. 
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Aydin testified that during the assault, Sevil struck him in the head with a 

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

stopped when an unconnected person intervened. The men continued to 

engage verbally. 

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

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

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

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

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

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

lot. 

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

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

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

Izmir left Ameripro in the white BMW. 

Approximately 12 minutes after the first encounter, Aydin returned to 

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

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

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

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

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

by making a profane gesture directed at Aydin. 

A few minutes after Aydin returned, the Shakhmanov brothers can
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be seen in the Ameripro lobby placing metal poles and rebar just inside the 

door of the business. * * * 

Approximately six minutes after Aydin returned, Murad and Izmir also 

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

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

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

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

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

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

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

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

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

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

fray. 

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

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

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

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

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

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

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

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

across the street toward the Ameripro office in an effort to escape from his 
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attackers. 

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

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

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

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

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

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

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

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

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

stabbed. 

Izmir followed Aydin across the street and continued arguing with 

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

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

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

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

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

continue attacking Aydin. 

The video shows that Aydin walked away and continued arguing with 

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

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

Aydin behind the wooden fence where the assault apparently continued. 

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

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

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

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

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

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

approximately 52 seconds. Murad came out from behind the fence

carrying the baseball bat. 

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

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

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

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

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

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

moments later. 

Id. at ¶ 6-19. 

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

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

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

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

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

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

to suppress, the trial court issued a decision in which it concluded the following: 
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* * * As to [Mustafa’s] office, [Sevil] presented no evidence as to 

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

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

reasonable expectation of privacy in the business areas entered by the 

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

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

subjective privacy concerns, nor objective privacy considerations as to 

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

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

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

by the police. * * * 

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

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

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

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

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

control sanctions. 

{¶ 6} Sevil appeals. 

II. Expectation of Privacy Analysis 

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

THE TRIAL COURT ERRED BY HOLDING THAT APPELLANT COULD 

NOT MOVE TO SUPPRESS EVIDENCE IN THIS MATTER BECAUSE HE 
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DID NOT HAVE A PERSONAL EXPECTATION OF PRIVACY AT THE 

BUSINESS FROM WHICH THE SURVEILLANCE VIDEO WAS 

OBTAINED, IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 

ONE, SECTION 14 OF THE CONSTITUTION OF OHIO. 

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

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

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

business property, including Mustafa’s office. 

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

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

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

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

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

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

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

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

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

the surveillance video. 

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

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

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

1868, 20 L.Ed.2d 889 (1968). An analysis of this Fourth Amendment protection 
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“focuses, primarily, on whether a person has a ‘constitutionally protected reasonable 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

individual’s home.” (Citation omitted.) Id. at 699. Accord State v. Henderson, 2d Dist. 
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Montgomery No. 22062, 2008-Ohio-1160, ¶ 13. 

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

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

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

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

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

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

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

equipment was maintained and operated.” We disagree. 

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

hearing. The undisputed evidence demonstrates that the surveillance recording 

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

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

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

company. Further, while the evidence indicated that Mustafa had supplied all of the codefendants with keycards that gave them access to the business premises, Mustafa’s 

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

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

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

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

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

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

business premises than the keycards issued to the other co-defendants. Further, no 
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evidence was adduced to demonstrate that any of the keycards issued by Mustafa 

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

unfettered access to that office. 

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

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

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

err in overruling his motion to suppress the surveillance video. 

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

III. Consent Analysis 

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

THE TRIAL COURT ERRED BY HOLDING THAT CONSTITUTIONALLY 

VALID CONSENT WAS PROVIDED FOR THE COLLECTION OF THE 

SURVEILLANCE VIDEO. 

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

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

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

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

no relevance to Sevil’s case. 

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

IV. Mistrial Analysis 

{¶ 20} Shakhmanov’s third assignment of error is as follows: 
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THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL WHEN 

NEWS ACCOUNTS RELATING TO THE ARREST OF CO-DEFENDANT 

IZMIR KOCH IN A SEPARATE MATTER WERE PUBLISHED DURING 

THE TRIAL THEREBY VIOLATING HIS RIGHT TO DUE PROCESS OF 

LAW UNDER THE FIFTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE ONE, SECTION 10 OF THE 

CONSTITUTION OF OHIO. 

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

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

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

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

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

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

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

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

N.E.2d 1248 (1985). 

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

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

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

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

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

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

rather than individually, whether they had seen or heard any media reports related to the 
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case. None of the jurors indicated that they had had contact with any media reports 

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

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

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

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

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

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

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

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

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

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

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

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

media reports about it.” 

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

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

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

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

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

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

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

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

was aware of, according to the record, is that an issue with media reports had arisen; 
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something they had been admonished to avoid. Given that the jury had been 

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

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

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

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

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

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

mistrial. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

juror. Thus, we review this argument under a plain error standard. To establish plain 
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error, a defendant must point to an obvious error that affected the outcome of the 

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

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

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

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

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

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

syllabus. 

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

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

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

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

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

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

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

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

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

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

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

Accordingly, the third assignment of error is overruled. 

V. Ineffective Assistance Analysis 

{¶ 31} The fourth assignment of error states: 
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APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN 

VIOLATION OF HIS RIGHTS UNDER THE FIFTH AND SIXTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND 

ARTICLE ONE, SECTION 10 OF THE CONSTITUTION OF OHIO WHEN 

HIS TRIAL COUNSEL ACQUIESED IN THE ELIMINATION OF A JURY 

INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF ASSAULT 

AND DID NOT SEEK TO SEVER APPELLANT’S CASE. 

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

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

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

further contends that trial counsel should have opted to sever his case from that of his codefendants. 

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

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

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

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

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

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

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

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

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

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

344, 594 N.E.2d 688 (2d Dist.1991). “Trial counsel is entitled to a strong presumption 
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that his or her conduct falls within the wide range of reasonable assistance, and a 

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

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

judgment.’ ” (Citation omitted.) State v. Few, 2d Dist. Montgomery No. 25161, 2012-Ohio5407, ¶ 10. “Hindsight is not permitted to distort the assessment of what was reasonable 

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

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

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

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

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

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

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

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

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

¶ 35. 

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

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

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

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

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

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

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

multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of 
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incongruous results in successive trials before different juries.” State v. Thomas, 61 

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

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

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

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

Id. 

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

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

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

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

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

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

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

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

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

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

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

claim that the joinder of the cases caused him to cede his right to an instruction on lesserincluded offenses is without merit, as we cannot ascertain whether counsel’s decision 

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

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

the failure to seek a separate trial. 

{¶ 37} Sevil next contends that counsel was ineffective because he agreed to 
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stipulate that Aydin suffered serious physical harm and thereby prevented Sevil from 

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

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

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

hospitalization or prolonged psychiatric treatment; 

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

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

total, or that involves some temporary, substantial incapacity;

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

some temporary, serious disfigurement; 

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

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

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

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

covered in bruises after the attack. 

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

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

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

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

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

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

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

physical harm, possibly in order to avoid the testimony of three physicians who would 
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discuss the injuries and their aftermath in detail. Given the unrebutted evidence the 

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

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

of counsel’s essential duties to his client. 

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

VI. New Trial Analysis 

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

THE FAILURE TO APPLY IN THE INSTANT CASE THE RULE SET 

FORTH BY THE UNITED STATES SUPREME COURT IN GRIFFITH V. 

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

OF CRIMINAL PROCEDURE MUST BE APPLIED RETROACTIVELY FOR 

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

SHIFTING OF THE BURDEN OF PROOF FROM THE DEFENDANT TO 

THE STATE FOR THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE 

WOULD VIOLATE THE DUE PROCESS CLAUSES OF THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION. 

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

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

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

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

for a new trial. 

{¶ 43} This exact issue, along with the same arguments and cited case law, was 
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raised in co-defendant Izmir Koch’s direct appeal to this court. In that case, we stated 

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

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

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

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

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

VII. Conclusion 

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

court is affirmed. 

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

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

Copies sent to: 

Mathias H. Heck, Jr. 

Andrew T. French 

Anthony R. Cicero 

Hon. Mary Lynn Wiseman