[Cite as State v. McCollough , 2020-Ohio-4703.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
State of Ohio Court of Appeals No. H-18-024 Appellee Trial Court No. CR 20171116

v. Trent W. McCullough DECISION AND JUDGMENT Appellant Decided: September 30, 2020

* * * * * James Joel Sitterly, Huron County Prosecuting Attorney, for ap pellee. Paul Dolce, for appellant. * * * * * SINGER, J. {¶ 1} On January 4, 2017, appellant, Trent McCollough, called 911 to alert authorities that a person was shot at his house. When the poli ce arrived, appellant was on top of the victim attempting to perform CPR or apply pressure t o wounds. The victim2. was shot in his right forearm and the right side of his chest. The victim died before he reached the hospital. {¶ 2} Earlier in the night, appellant and the victim were sitting at the kitchen table where appellant was cleaning a handgun. When appellant lowered the gun to the table after he was finished, it discharged and the bullet struck the victim. Appellant was arrested later the same night. A search warrant was later issu ed for appellant’s residence, where several marijuana plants and additional firearms were fou nd by the police. {¶ 3} On February 10, 2017, appellant’s matter was transferred from N orwalk Municipal Court to the Huron County Court of Common Pleas and h e was indicted on one count of reckless homicide, a felony of the third-degree, i n violation of R.C. 2903.04 and one count of illegal cultivation of marijuana, a misdemeano r of the fourth-degree, in violation of R.C. 2925.04(A) and (C)(5) in case No. 2017 CRI 00 36. Appellant retained the same counsel who represented him on other matters and enter ed a not guilty plea to all the charges. {¶ 4} During the course of the proceedings, appellant signed several waivers of his speedy trial rights, motions for continuances, and motions for discovery. He also filed a motion to have a firearm expert be provided him at state’s expe nse. The trial court denied this motion. {¶ 5} On November 20, 2017, appellant was again indicted under a sepa rate case number with the same counts of reckless homicide and illegal cu ltivation of marijuana. He was also charged with two counts of involuntary manslaughter , a first-degree felony,3. in violation of R.C. 2903.04(B) and (C), one count of violating a protection order, a thirddegree felony in violation of R.C. 2919.27(A)(2) and (B)(4), an d one count of violating a protection order, a third-degree felony, in violation of R.C. 2 919.27(A)(2) and (B)(2), in case No. 2017 CRI 1116. These new counts and the count of reck less homicide had a three-year firearm specification under R.C. 2941.145(A) attache d. Appellee then dismissed case No. CRI 2017 0036. {¶ 6} On December 21, 2017, original trial counsel filed a motion to withdraw because based on the new charges, counsel was a potential witne ss on the violation of a protection order count. The trial court permitted retained cou nsel to withdraw on January 25, 2018. {¶ 7} When appellant was unable to obtain new private counsel, the Hu ron County Public Defender’s Officer was appointed to him by the trial cou rt. A few months later, the office moved to withdraw from representation because the pu blic defender’s office was overburdened. The trial court permitted the public defende r’s office to withdraw and appointed appellant his third counsel. This counsel represente d appellant throughout the pendency of the matter. {¶ 8} After the appointment of new counsel, appellant filed a motion to dismiss based on speedy trial violations, which was denied by the trial court. On September 21, 2018, counsel also filed a motion to bar the admission of the s tate’s firearms expert and photographs which appellant argued were gruesome. The trial co urt also denied this motion.4. {¶ 9} At trial, an Erie County Court of Common Pleas magistrate testi fied that he issued an ex parte Civil Stalking Protection Order on October 4 , 2016, in which appellant was the respondent. The magistrate testified that he marked “B ox 8” on the form which indicated that appellant would be under a firearms restriction. This firearm restriction meant that appellant was not permitted to purchase or possess a ny firearms while the order was in place. {¶ 10} On October 12, 2016, appellant appeared before the magistrate p ro se and sought a continuance. The magistrate issued an order continuin g the terms of the ex parte order. On December 13, 2016, appellant appeared with his origi nal trial counsel and sought to come to an agreement between the parties. When an ag reement could not be reached, the matter was continued to February 2017 and the ex p arte order, and its firearm restriction, remained in effect. The magistrate testif ied that the order was in effect at the time of the January 4, 2017 incident, although th ere were questions as to whether appellant understood or was on notice he was not permit ted to have a firearm. Appellant’s original trial counsel testified at trial that he i nformed appellant he would not be under such a firearm restriction. {¶ 11} Appellant was brought to trial on September 25, 2017, and was f ound guilty on all charges by a jury except for one charge of involu ntary manslaughter. Appellant was sentenced to a term of 30 months for the remainin g charge of involuntary manslaughter with three years of mandatory time attached for th e firearm specification.5. Appellant was sentenced to time served for the charge of illega l cultivation. The other charges were merged into the involuntary manslaughter for the p urposes of sentencing. {¶ 12} Appellant brings forth five assignments of error for our review : 1. The jury’s verdict was against the manifest weight of the edive nce (sic), the sufficiency of the evidence, and the court erred in denying the defendant’s criminal rule 29 motion for acquittal.
2. The court erred in not dismissing the indictment due to defendant’s speedy trial rights being violated.
3. The court erred by admitting gruesome photographs of the decedent and allowing said photographs to be prsented (sic) to the jury.
4. Defendant was denied effective assistance of counsel.
5. The trial court erred in denying defendant’s motion to dismiss based upon alleged Brady law violations and erred in preventing the defendant from presenting evidence to demonstrate that he was n ot under a firearms restriction. Speedy Trial {¶ 13} “The right to a speedy trial is guaranteed by the Sixth and Fou rteenth Amendments to the U.S. Constitution and Article I, Section 10, of the Ohio Constitution.” State v. Crawford , 6th Dist. Lucas No. L-17-1296, 2019-Ohio-3123, ¶ 17, citing State v. Adams , 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). R.C. 2947.71, et seq., codify these guarantees in Ohio. The state is required t o bring a defendant charged6. with a felony to trial within 270 days after his or her arrest. R.C. 2945.71(C)(2). If a defendant makes a prima facie demonstration that his speedy tri al rights have been violated, the burden shifts to the state to demonstrate that th e defendant was timely brought to trial. Id ., citing State v. Taylor , 6th Dist. Lucas No. L-98-1375, 2001 WL 1198648, *2-3 (Oct. 5, 2011). If the state fails to meet its b urden, the trial court must dismiss the charges against the defendant. Id ., citing R.C. 2945.73(B). {¶ 14} A defendant is required to make a motion to dismiss on the basi s that the defendant’s speedy trial rights have been violated “at or prior to the commencement of trial.” R.C. 2945.73(B). “At its most basic, a speedy-trial c alculation requires us to ‘‘simply count the number of days passed, while determining to which party the time is chargeable, as directed in R.C. 2945.71 and R.C. 2945.72.’’” Crawford at ¶ 22, quoting State v. Vrapi , 10th Dist. Franklin No. 11AP-700, 2012-Ohio-1018, ¶ 6. Each day a defendant is held in custody in lieu of bail counts as three da ys for speedy-trial purposes. R.C. 2945.71(E). This provision only applies when the defendan t is “held in jail solely on the pending charge.” Id ., quoting State v. Sanchez , 110 Ohio St.3d 274, 2006-Ohio4478, 853 N.E.2d 283, ¶ 7. {¶ 15} “[S]ubsequent charges made against an accused would be subject to the same speedy-trial constraints as the original charges, if addit ional charges arose from the same facts as the first indictment.” State v. Baker , 78 Ohio St.3d 108, 110, 676 NE.2d 883 (1997), citing State v. Adams , 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). “‘When new and additional charges arise from the same facts as did the original charge7. and the state knew of such facts at the time of the initial ind ictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.’” Id . at 111, citing Adams at 68. {¶ 16} “When an accused waives the right to a speedy trial as to an in itial charge, this waiver is not applicable to additional charges arising fro m the same set of circumstances that are brought subsequent to the execution of t he waiver.” Id . “For a waiver to be entered into knowingly, it is elementary that the defendant understand the nature of the charges against him, as well as know exactly what is being waived and the extent of the waiver. Adams at 69. The Adams court went on to find that although the defendant in that matter entered a valid waiver to the first ch arge, the defendant “did not have sufficient knowledge of the consequences of his actions at the time he executed waivers so that such actions could constitute valid waivers as to the right to a speedy trial of the second charge.” Id

. {¶ 17} Below are the pertinent events in case No. CRI 2017 0036:

 January 4, 2017: Appellant is arrested on the charges contained in the first indictment.

 February 10, 2017: Case is transferred from Norwalk Municipal Court to the Huron County Court of Common Pleas.

 February 15, 2017: Trial date of April 4, 2017, set by trial co urt.

 March 10, 2017: Appellant files a motion for a continuance.8.  March 28, 2017: Appellant signs a waiver of speedy time until the new trial date of May 16, 2017, and 30 days thereafter.

 March 28, 2017: Appellant’s motion for continuance is granted.

 March 29, 2017: Appellant is released from jail after posting b ond.

 May 22, 2017: Appellant files motion for firearm expert at the state’s expense.

 June 8, 2017: Trial court denies appellant’s motion for a firea rm expert.

 July 12, 2017: Appellant files a motion to continue the trial date.

 July 18, 2017: Trial court grants motion for continuance and reschedules trial date on September 26, 2017.

 September 19, 2017: Appellant files a motion for discovery.

 September 25, 2017: Appellee responds with discovery.

 November 6, 2017: Appellant seeks a continuance of the final pretrial.

 November 13, 2017: Motion for continuance granted.

 November 22, 2017: Appellee files to dismiss the matter.

 November 29, 2017: Motion to dismiss granted by the trial cour t.

 In case No. 2017 1116 the following pertinent events occurred:

 November 20, 2017: Appellant was indicted with the additional charges of violating a protection order and involuntary manslau ghter.9.  November 21, 2017: Appellant signs a time waiver until the new trial date of February 6, 2018, and 30 days thereafter.

 December 11, 2017: Appellant requests a continuance of the pretrial hearing. The hearing is rescheduled for December 19, 2 017, from the original date of December 11, 2017.

 December 19, 2017: Appellant’s original counsel files a motion to withdraw because he may be a witness in the new charges against defendant.

 January 25, 2018: Trial court grants the motion to withdraw.

 February 13, 2018: Appellant signs a waiver of time until the n ew trial date of March 6, 2018, and 30 days thereafter.

 February 15, 2018: Appellant requests a continuance from February 15 to March 5, 2018, and seeks new counsel.

 March 6, 2018: Appellant signs a waiver of time until the new t rial date of July 10, 2018, and 30 days thereafter.

 March 8, 2018: Trial Court appoints the Huron County Public Defender’s office to represent appellant.

 April 23, 2018: Public Defender’s Office moves to withdraw from representation.

 April 26, 2018: The motion to withdraw is granted and new counsel is appointed to appellant.10.  May 21, 2018: Appellant files a motion for discovery.

 June 6, 2018: Appellee responds to the motion for discovery.

 June 28, 2018: Appellant files his motion to dismiss based on speedy trial violations.

 July 3, 2018: Appellant waives speedy trial time until the new trial date of August 14, 2018, and 30 days thereafter.

 July 20, 2018: Appellant and appellee file a joint motion for a continuance of the trial date.

 July 25, 2018: The motion for continuance is granted. Appellan t waives time until the new trial date of September 25, 2018.

 September 24, 2018: Trial court denies the motion to dismiss.

 September 25, 2018: Trial begins.

 October 1, 2018: Appellant found guilty by a jury. {¶ 18} First, we find that the second indictment did not extend the st atute of limitations that appellee was required to bring appellant to tr ial. The second indictment included charges that arose from the same facts and circumstanc es as the original charges and therefore must be included in the same time calculations. Appellant was charged for violating the protection order because on the day that the vict im was shot, appellant was prohibited from possessing a firearm. The charges all stemmed from the same accidental discharge of a firearm appellant possessed on January 4, 2017.11. {¶ 19} Each time appellant waived his speedy trial rights, appellant s igned a form from the trial court. This form states that appellant understa nds his speedy trial rights. By signing the form, he further agreed that it was in his best interest to waive the speedy trial time limitations and he understood that by signing the wa iver, he may extend his time in jail. The form also states “[k]nowing these things, I do hereby voluntarily and intelligently waive the time limitation period defined above an d consent to a trial date of [various trial dates] and waive the time within which trial mus t commence through the thirtieth (30th) day following said trial date.” Appellant sig ned this form each time he agreed to waive his speedy trial rights before the trial court. Thus, essentially, appellant agreed to waive his speedy trial rights to each new trial date and 30 days thereafter. {¶ 20} After a thorough review of the docket, and with little assistan ce from appellant’s own brief, we find 629 days passed from appellant’s arrest until his trial began. He therefore made a prima facie showing that his speedy trial rights were violated. However, it appears that much of this time period wa s tolled because appellant signed several time waivers, several motions for discovery, and had two attorneys withdraw from representation. Original Charges in the First Indictment {¶ 21} A majority of the time, from appellant’s arrest through the sta rt of the trial, was tolled due to motions or time waivers, but there are a few limited time periods where time tolling did not take place. First, from January 4, 2017, through March 10, 2017,12. appellant was held in jail in lieu of bond and no tolling event s took place in this time period. This constituted 66 days that appellant served, which is multiplied by three, and equals 198 days. Next, in case No. 2017 0036, from June 15, 20 17, through July 12, 2017, no tolling events took place, constituting an additional 26 days. From October 26, 2017, through November 6, 2017, there were no tolling events wh ich accounted for 11 days that were not waived. Finally, from November 13, 2017, th rough November 20, 2017, no tolling events took place and accounted for another se ven days. Thus, in total 242 days passed on the first case number and under the first in dictment. {¶ 22} Next, in case No. 2017 1116, from November 20, 2017, through No vember 21, 2017, no tolling events took place, constituting just one d ay that counts towards appellant’s speedy trial time. The rest of the time was tolled from appellant’s counsel seeking to withdraw, appellant’s motions for discovery, and tim e waivers signed by appellant. {¶ 23} For clarity, the following chart denotes the time the prosecuti on took to bring appellant to trial as it relates to the original charges of reckless homicide in violation of R.C. 2902.04 and cultivating marijuana in violatio n of R.C. 2925.04(A) and (C)(5).13. {¶ 24} Therefore, appellant’s speedy trial rights were not violated by the trial court as appellant was brought to trial within 243 days of his arrest for the charges that where originally brought in the first indictment. New Charges in the Second Indictment {¶ 25} However, the new charges that were brought in the second indict ment are a different story. Pursuant to Baker , a defendant cannot waive his rights to speedy trial prior to charges actually being brought against the defendant b ecause that waiver would not be made knowingly. Therefore, any waivers that applied in case No. 2017 0036 cannot apply to the additional charges that were brought in cas e No. 2017 1116. However, tolling periods apply to the new charges as they would the original charges. Begin Date End Date Reason Total Days
Januar y 4, 2017 March 28, 2017 Jailed 198 da y s March 28, 2017 June 16, 2017 Time Waiver Tolled June 16, 2017 Jul y 12, 2017 26 da y s Jul y 12, 2017 Jul y 18, 2017 Continuance Tolled Jul y 18, 2017 October 26, 2017 Time waiver Tolled October 26, 2017 November 6, 2017 11 da y s November 6, 2017 November 13, 2017 Continuance Tolled November 13, 2017 November 20, 2017 7 da y s Total for case No. 2017 0036: 242 November 20, 2017 November 21, 2017 1 Novembe r 21, 2017 March 6, 2018 Time waiver Tolled March 6, 2018 A p ril 6, 2018 Time waiver Tolled A p ril 6, 2018 Au g ust 20, 2018 Time waiver Tolled Au g ust 20, 2018 Se p tember 25, 2018 Time waiver Tolled Se p tember 25, 2018 Trial be g ins Total for case No. 2017 1116: 1 Total for charges of reckless homicide and cultivating mari j uana char g es: 24314. {¶ 26} As we found above, the additional charges arise from the same f acts and circumstances, or were known to the police at the time the orig inal charges were brought. Therefore, the re-indictment of appellant did not extend the sp eedy trial time period for these additional charges. As such the time period began to run on the additional charges on the same day that appellant was originally arrested for the original charges. However, without the time waivers that appellant signed, the speedy tria l time has run. {¶ 27} Appellant was held in jail pending the charges from January 4, 2017 through March 10, 2017, when appellant filed a motion for a con tinuance. This was 66 days, but as appellant was in jail, these days are multiplied b y three for a total of 198 days. The motion for continuance was granted on March 28, 2017 , so the tolling time period for the motion was completed on that day. No other toll ing events took place until May 22, 2017, when the motion for a firearm expert was filed by appellant, which accounted for 55 days of time. Two motions and a continuance s ought by appellant tolled the time until September 26, 2017. From September 27, 2 017, through November 5, 2017, no tolling events took place and accounted for additio nal 39 days. Time further ran from November 13, 2017, through November 20, 2017, accounti ng for an additional seven days. In total, in case No. 2017 0036, 299 days ran on t he new charges of violating a protection order, involuntary manslaughter, and the attached firearm specifications. As for the other charges, only one day counted towards the speedy trial time in case No. 2017 1116, for a total of 300 days from the time appellant was arrested until he was15. brought to trial. The following chart demonstrates the amount of time that has counted towards the speedy trial time limit for the charges brought in the second indictment.

{¶ 28} Therefore, the two charges of violating protection order, two c harges of involuntary slaughter, and the firearm specifications took long er than 270 days to bring to trial. As such, appellant’s second assignment of error is well taken in regards to the additional charges brought in the second indictment. Appellant ’s convictions as they relate to these additional charges are vacated and the matter m ust be remanded to the trial court for further sentencing. Begin Date End Date Reason Total Days
Januar y 4, 2017 March 28, 2017 Jailed 198 da y s March 28, 2017 Ma y 22, 2017 55 da y s Ma y 22. 2017 June 8, 2017 Motion Tolled Jul y 12, 2017 Se p tember 26, 2017 Continuance/Motion Tolled Se p tember 27, 2017 November 5, 2017 39 da y s November 6, 2017 November 13, 2017 Continuance Tolled November 13, 2017 November 20, 2017 7 da y s Total for case No. 2017 0036: 299 da y s November 20, 2017 November 21, 2017 1 November 21, 2017 March 6, 2018 Time waiver Tolled March 6, 2018 A p ril 6, 2018 Time waiver Tolled A p ril 6, 2018 Au g ust 20, 2018 Time waiver Tolled Au g ust 20, 2018 Se p tember 25, 2018 Time waiver Tolled Se p tember 25, 2018 Trial be g ins Total for case No. 2017 1116: 1 Total for both charges of violating a protection order, both charges of involuntary manslaughter, and the gun specifications char g es: 30016. Preindictment Delay {¶ 29} Appellant next argues that because the second indictment was fi led eleven months after the first indictment, his due process rights were violated by that preindictment delay. {¶ 30} “‘[P]reindictment delay violates due process only when it is un justifiable and causes actual prejudice * * *.’” State v. Reynolds , 6th Dist. Lucas No. L-16-1080, 2018-Ohio-40, ¶ 37, quoting State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. The test to determine whether a preindictmen t delay violates a defendant’s due process rights is a two-step burden-shifting te st. First, the defendant must present evidence of actual prejudice. If he does, the burden shifts to the state to produce evidence of jus tifiable reason for the delay; the reason for the state’s delay is irrelevant i f the defendant cannot establish actual prejudice. In reviewing the trial cour t’s decision on a motion to dismiss for preindictment delay, we give deference to the trial court’s findings of fact, but review the court’s application of the law to the facts de novo. (Citations omitted). Id

. {¶ 31} “‘Actual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state’s evidence and bolster the defense.’” Id . at ¶ 38, citing Jones at ¶ 28. {¶ 32} In his motion, appellant argues that the delay from January 201 7, to November 2017, caused him actual prejudice because his counsel at the time was forced17. to withdraw from representation and become a witness in the act ion relating to the charges of violating a protection order. However, appellant fa ils to state how a change in counsel minimized the impact of the state’s evidence, bolstered the defense, or affected his defense in any manner. The need for new counsel to be appo inted did extend appellant’s case by some time. However, we cannot find that ap pellant suffered actual prejudice due to this delay in the filing of the second indictm ent, and therefore do not need to consider appellee’s reasoning for the delay. {¶ 33} We therefore find appellant’s second assignment of error well t aken in part and not well taken in part. We vacate appellant’s convictions for involuntary manslaughter, both counts of violating a protection order, the specifications attached to these charges as well as the firearm specification attached to the reckless homicide count. The convictions relating to reckless homicide and cultivating m arijuana are not reversed and appellant’s assignment of error in regard to these convicti ons is not well taken. Crim.R. 29 Motion and Sufficiency of the Evidence {¶ 34} By making a motion for acquittal under Crim.R. 29(A), a defenda nt challenges the sufficiency of the evidence. State v. Brinkley , 105 Ohio St.3d 231, 2005- Ohio-1507, 824 N.E.2d 959, ¶ 39. A court’s denial of a motion for acquittal under Crim.R. 29(A) “is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence.” State v. Tenace , 109 Ohio St.3d 255, 2006- Ohio-2417, 847 N.E.2d 386, ¶ 37.18. {¶ 35} Whether there is sufficient evidence to support a conviction is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt. (Internal citations omitted)

. State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). When making such a deter mination, an appellate court will not weigh the evidence or assess the credibility of the witnesses. State v. Walker , 55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978). {¶ 36} Appellant fails to point to elements of the charges he feels ap pellee failed to prove beyond a reasonable doubt. Appellee was required to d emonstrate that appellant recklessly caused the death of another. “A person acts reckles sly when, with heedless indifference to the consequences, the person disregards a subst antial and unjustifiable risk that the person’s conduct is likely to cause a certain result o r is likely to be of a certain nature. A person is reckless with respect to circumstances whe n, with heedless indifference to the consequences, the person disregards a subst antial and unjustifiable risk that such circumstances are likely to exist.” R.C. 2901.22(C). {¶ 37} Here, appellee presented evidence of the police officers who re sponded to the 911 call made by appellant. Officers testified that appell ant was attempting to revive or assist the victim at the time the officers arrived on the sc ene and that his initial statement to the police stated that the victim accidentally sho t himself. One of these19. officers recorded statements appellant made to officers on the scene that demonstrated that appellant admitted he had the firearm in his possession wh en the weapon discharged. {¶ 38} Appellee also presented evidence in the form of photographs of the scene that demonstrated where the incident took place and what the sc ene looked like on that day. The coroner and forensic pathologist who reviewed the vic tim’s body testified that the victim died of a bullet wound and presented reports and pho tographs of the wounds. Testimony of Albert Larochelle, an expert in the type of firear m appellant used the day in question, was presented to demonstrate that the weapon was in g ood working order and all of the safety features were properly functioning on the day the firearm injured the victim. Further evidence was presented that appellant was hold ing a loaded weapon without all of the safety features engaged and pointed that wea pon at another person, thus demonstrating a heedless indifference to human life. Appellant admitted he was well versed in weapons and the dangers presented by the actions he t ook that night. Appellee therefore presented sufficient evidence that appellant reckless ly caused the death of another. {¶ 39} Following their response to the 911 call, police filed a warran t seeking a search of the home. During that search, the police found sever al marijuana plants that appellant was growing and taking care of. Therefore, there was sufficient evidence that appellant was cultivating and engaging in the production of a c ontrolled substance. {¶ 40} Accordingly, sufficient evidence, including appellant’s own sta tements, was presented to the jury to determine appellant’s guilt. We f ind that after viewing this20. evidence in a light most favorable to appellee, that a rational trier of fact could have found the essential elements of the crime had been proven beyon d a reasonable doubt. Therefore, this portion of appellant’s first assignment of erro r is not well-taken. Manifest Weight {¶ 41} “While sufficiency of the evidence examines whether the evidenc e is legally sufficient to support the verdict as a matter of law, t he criminal manifest weight of the evidence standard addresses the evidence’s effect of induci ng belief.” Crawford , 6th Dist. Lucas No. L-17-1296, 2019-Ohio-3123, at ¶ 46, citing State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. The appellat e court must sit as the “thirteenth juror” and scrutinize the factfinder’s resolution o f the conflicting testimony. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. When reviewing an appe llant’s claim that a verdict is against the manifest weight of the evidence, an appellate court must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether the jury clearly lost its way in resolvin g evidentiary conflicts so as to create such a manifest miscarriage of justice that the convi ction must be reversed and a new trial ordered. Id

. {¶ 42} Based on the testimony and evidence presented at trial, we cann ot find that the jury lost its way when it found appellant guilty on all cou nts. Appellee presented evidence of each crime which proved appellant’s guilt beyond a reasonable doubt. Appellee presented evidence that on the day of the incident app ellant was in possession of a firearm, that the firearm was under his control when it di scharged, and that the gun21. shot the victim who would later die from his wounds. Therefore , this portion appellant’s first assignment of error is also found not well-taken. {¶ 43} As appellant’s conviction was not against the sufficiency of th e evidence or the manifest weight of the evidence, the entirety of appellant’ s first assignment of error is found not well-taken.
Admission of Pictures {¶ 44} Appellant next argues the admission of certain photographs was in error because their probative value did not outweigh the prejudicial effect on jurors. The disputed photographs were photographs taken during the autopsy of the victim and contained photographs of the deceased victim, his wounds, and a photograph of the victim’s liver which suffered a bullet wound. Appellant’s coun sel objected at trial to the introduction of the photographs and the trial court limited the number of photographs appellee sought to introduce so that they would not be repetiti ve. Under Evid.R. 403 and 611(A), the admission of photographs is l eft to the sound discretion of the trial court. To be certain, a t rial court may reject a photograph, otherwise admissible, due to its inflammat ory nature if on balance the prejudice outweighs the relevant probative value . However, the mere fact that a photograph is gruesome or horrendous is no t sufficient to render it per se inadmissible. ‘The trial court has broad discretion in the admission * * * of evidence and unless it has clearly abused it s discretion22. and the defendant has been materially prejudiced thereby, this court should be slow to interfere.’ (Citations omitted). State v. Maurer , 15 Ohio St.3d 239, 264, 473 N.E.2d 768 (1984). {¶ 45} Here, the trial court properly admitted the autopsy photographs because the photographs assisted the jury in understanding the coroner and forensic pathologist’s testimony describing the manner of death. The pictures were no t repetitive and assisted in demonstrating that the victim passed away due to a gunshot w ound. Further, the pictures were not gruesome, graphic wounds, but rather were mer e depictions of clean wounds where the bullet entered and exited the victim’s body. Therefore, the probative value was not substantially outweighed by the danger of unfair prejudice. Appellant’s third assignment of error not well-taken.
Effective Assistance of Counsel {¶ 46} The Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), laid out a two-part test to determine if a defendant was provided ineffective assis tance of counsel. First, a defendant must demonstrate that the trial counsel’s conduct fel l below an objective standard of reasonableness and that those errors were serious e nough to create a reasonable probability, that but for the errors, the result of the trial would have differed.23. Bradley at 142. Trial counsel is entitled to a strong presumption tha t his or her counsel did not fall below a reasonable standard. Strickland at 688. {¶ 47} Appellant argues that his counsel’s representation was ineffect ive because counsel failed to seek the appointment of a firearm expert at a ppellee’s expense, failed to move the court sever the charges or seek discharge of the charg es, and failed to introduce evidence requested by appellant. {¶ 48} We first find that appellant’s trial counsel was not deficient for failing to file a motion for a firearm expert because trial counsel did fi le such a motion in case No.
CRI 2017 0036. {¶ 49} Next, appellant’s counsel was not deficient in failing to seek severance of the charges because the cultivation of marijuana charge is not so prejudicial that the charge was required to be severed, especially considering the o ther very serious charges appellant was charged with. Appellant’s counsel did not fall b elow a reasonable standard in regards to seeking a discharge of appellant on the cultivati on of marijuana charge because counsel filed a motion for dismissal on speedy trial gr ounds and filed a supplement to motion further arguing his position. {¶ 50} Finally, appellant’s counsel was not ineffective for failing to introduce evidence from the ex parte hearing because such a decision was a legitimate legal strategy to which this court will defer. State v. Mohamed , 151 Ohio St.3d 320, 2017- Ohio-7468, 88 N.E.3d 935, ¶ 18, citing State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980)(“Questionable trial strategies and tactics, however, do not rise to the24. level of ineffective assistance of counsel.”). Appellant’s fou rth assignment of error is not well-taken.
Civil Protection Order {¶ 51} As we previously found that the charges for violating the prote ction orders violated appellant’s speedy trial rights, we will not determine whether the trial court erred in failing to dismiss and in prohibiting appellant from present ing evidence that the protection order was not valid at the time of the incident. Th e court finds appellant’s fifth assignment of error is moot.
Conclusion {¶ 52} We affirm in part and reverse in part the judgment of the Huron County Court of Common Pleas. Appellant’s conviction for involuntary manslaughter, both convictions for counts of violating a protection order, the att ached firearm specifications, and the firearm specification attached to the reckless homicide charge are reversed. The matter is remanded to the Huron County Court of Common Pleas fo r proceedings consistent with this opinion. All other aspects of the judgmen t of the Huron County Court of Common Pleas is affirmed. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed, in part, and reversed, in part.25. H-18-024 State v. McCullough

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _________________ ______________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.