[Cite as State v. Howard, 2014-Ohio-5679.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION 

No. 100094

STATE OF OHIO

 PLAINTIFF-APPELLEE 

vs. 

LEDON HOWARD

 DEFENDANT-APPELLANT 

JUDGMENT:

APPLICATION DENIED 

Cuyahoga County Court of Common Pleas 

Case No. CR-12-566854-A 

Application for Reopening 

Motion No. 477763 

RELEASE DATE: December 22, 2014 
FOR APPELLANT

Ledon Howard, pro se 

Inmate # 642-368 

501 Thompson Road 

P.O. Box 8000 

Conneaut, Ohio 44030 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: James M. Rice 

Brett Hammond 

Assistant County Prosecutors 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
TIM McCORMACK, J.: 

{¶1} In State v. Howard, Cuyahoga C.P. No. CR-12-566854-A, the applicant, Ledon 

Howard, was found guilty by a jury of felonious assault. This court affirmed that judgment in 

State v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176. 

{¶2} Howard has filed a timely application for reopening. Appellant argues that his 

appellate counsel was allegedly ineffective for not asserting errors challenging his conviction as 

being unsupported by sufficient evidence and being against the manifest weight of the evidence. 

Additionally, Howard contends that his appellate counsel should have argued that he was denied 

a fair trial because the prosecutors failed to correct allegedly false and perjured testimony from 

Det. DeCaro regarding the photo identification procedure. Howard asserts that Det. DeCaro 

“deliberately obstructed justice by altering sections of the Photo Lineup.” 

{¶3} The state has opposed the application for reopening. 

{¶4} The application for reopening is denied for the reasons that follow. 

{¶5} Howard has failed to meet his burden to demonstrate that “there is a genuine issue 

as to whether [he] was deprived of the effective assistance of counsel on appeal.” App.R. 

26(B)(5). 

{¶6} In State v. Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (1998), the Supreme Court 

specified the proof required of an applicant as follows: 

the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense 

request for reopening under App.R. 26(B)(5). [Applicant] must prove that his 

counsel were deficient for failing to raise the issues he now presents, as well as 

showing that had he presented those claims on appeal, there was a “reasonable 

probability” that he would have been successful. Thus [applicant] bears the 
burden of establishing that there was a “genuine issue” as to whether he has a 

“colorable claim” of ineffective assistance of counsel on appeal. 

Id. at 25. The applicant must demonstrate that counsel’s performance was deficient and that the 

deficient performance prejudiced the defense. Strickland.

{¶7} Howard cannot show prejudice with regard to his argument that counsel was 

ineffective for failing to challenge his conviction for insufficiency of the evidence or that his 

conviction is against the manifest weight of the evidence. 

{¶8} When assessing a challenge of sufficiency of the evidence, a reviewing court 

examines the evidence admitted at trial and determines whether such evidence, if believed, 

would convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v. 

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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 essential elements of the crime proven beyond a 

reasonable doubt.” Id. A reviewing court is not to assess “whether the state’s evidence is to be 

believed, but whether, if believed, the evidence against a defendant would support a conviction.” 

State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). 

{¶9} Howard argues that he was misidentified and, therefore, his conviction was based on 

insufficient evidence. The record includes testimony from several witnesses who positively 

identified Howard as the person who broke Shawna Mackey’s jaw on August 16, 2012. Under 

the applicable standard, a sufficiency of the evidence argument would fail because if that 

evidence is believed, it supports Howard’s conviction. Accordingly, Howard has not 

established a colorable claim for ineffective assistance of appellate counsel on this issue. 
{¶10} While the test for sufficiency of the evidence requires a determination whether the 

state has met its burden of production at trial, a manifest weight challenge questions whether the 

state has met its burden of persuasion. Thompkins at 390. Also unlike a challenge to the 

sufficiency of the evidence, a manifest weight challenge raises a factual issue. 

“The court, reviewing the entire record, weighs the evidence and all reasonable 

inferences, considers the credibility of witnesses and determines whether in 

resolving conflicts in the evidence, the jury clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new 

trial ordered. The discretionary power to grant a new trial should be exercised 

only in the exceptional case in which the evidence weighs heavily against the 

conviction.” 

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶11} “[T]he weight to be given the evidence and the credibility of the witnesses are 

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 

(1967), paragraph one of the syllabus. When examining witness credibility, “the choice 

between credible witnesses and their conflicting testimony rests solely with the finder of fact and 

an appellate court may not substitute its own judgment for that of the finder of fact.” State v. 

Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some, 

or none of the testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga 

No. 98538, 2013-Ohio-1184, ¶ 18. 

{¶12} Considering the record as a whole, Howard’s conviction is not against the manifest 

weight of the evidence. Howard provides no specifics in his argument as to why he believes his 

conviction is against the manifest weight of the evidence apart from his contention that he was 

misidentified. He generally refers to the lack of witness credibility. In his statement of facts, 

Howard argues that Mackey’s description to police “did not compare or come close to being a 

description” of him. However, defense counsel thoroughly cross-examined Mackey on this 
topic. She indicated that she believed she had accurately described Howard to police. She 

also testified that she gave police Howard’s phone numbers. She indicated Howard had gained 

weight since the incident and that she considered his hairstyle to be an “afro.” Mackey knew 

Howard and was 100 percent certain that he was the person who punched her. The jury heard the 

testimony and was free to believe or disbelieve it, and they had the opportunity to see Howard at 

trial to further assess the credibility of her description of him. Further, Mackey was only one of 

several people who witnessed the incident and identified Howard as the person who hit Mackey. 

Howard’s conviction is not against the manifest weight of the evidence, and therefore, he cannot 

establish a colorable claim of ineffective assistance of his appellate counsel for not raising this 

issue in his direct appeal. 

{¶13} There is no evidence in the record to support an argument that the state knowingly 

permitted false and perjured testimony from Det. DeCaro regarding the photo identification 

process. Howard complains that Det. DeCaro somehow tampered with the lineups by altering the 

location of the suspects on them. Det. DeCaro was questioned over the potential that a witness 

had actually identified a different person from photo set number 2, location number 5; rather than 

having identified Howard’s photo from set number 1, location number 5. Det. DeCaro testified 

that he did not show the photos to the witnesses and he does not know whether the person who 

did administer the photo lineups had mixed up the sheets or not. There is no indication that 

Det. DeCaro improperly changed the location of the photos or otherwise tampered with the 

photographic arrays. Appellate counsel cannot raise arguments that are not supported by evidence 

contained in the appellate record. 

{¶14} We note that appellate counsel did challenge Mackey’s identification of Howard. 

Appellate counsel challenged the trial court’s denial of the motion to suppress Mackey’s pretrial 
identification of him based on the photo arrays and the procedure utilized. The United States 

Supreme Court has upheld the appellate advocate’s prerogative to decide strategy and tactics by 

selecting what he thinks are the most promising arguments out of all possible contentions. The 

court noted: “Experienced advocates since time beyond memory have emphasized the 

importance of winnowing out weaker arguments on appeal and focusing on one central issue if 

possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 

3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the 

stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable 

professional judgments and impose on appellate counsel the duty to raise every “colorable” issue. 

 Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of 

Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 672 N.E.2d 638 (1996). 

{¶15} Howard has not met the standard for reopening under either prong of the Strickland

test. Accordingly, the application for reopening is denied. 

TIM McCORMACK, JUDGE 

SEAN C. GALLAGHER, P.J., and 

KENNETH A. ROCCO, J., CONCUR