[Cite as State v. White, 2022-Ohio-2130.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110452

v. :

TREAL WHITE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 23, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-19-646377-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Tasha L. Forchione, Assisting Prosecuting 

Attorney, for appellee. 

Robert A. Dixon, for appellant. 

EMANUELLA D. GROVES, J.:

Defendant-appellant, Treal White (“White”), appeals his conviction 

following a bench trial. For the reasons set forth below, we affirm.
Facts and Procedural History

In December 2019, a grand jury indicted White on one count of 

aggravated murder, one count of murder, one count of attempted murder, two 

counts of felonious assault, and one count of discharge of a firearm on or near 

prohibited premises. All counts contained one-year and three-year firearm 

specifications. White elected to waive his right to a jury trial and a bench trial 

commenced on March 22, 2021, where the facts elicited are as follows.

On September 21, 2019, White shot 25-year-old Tauvarsion “Shon” 

Waller (“Waller”) five times with an AR-15 assault rifle, killing him. Further, Tyrone 

Laney (“Laney”) sustained shots to the buttocks and hand during the shooting. 

White justified his actions by claiming he acted in self-defense.

White, Waller, and several other friends were hanging out, drinking 

and smoking marijuana in a vacant lot on Alhambra in the city of Cleveland. The 

vacant lot was next door to the house where Alisha Ashford (“Ashford”) was staying 

at the time. Although Ashford had concerns about the gathering of people next to 

her house, she described the group as laughing and having fun. 

According to White, things took a turn when someone who had stolen 

from him the week before showed up. Waller kept goading White to fight this 

person, to show he could stand up for himself. Nonetheless, White refused to fight. 

Waller punched White in the chest when he refused. According to White, this was 

the first time he and Waller fought in any way despite knowing each other since 

2017. The punch knocked the wind out of White. White punched back once in 
retaliation. Waller punched White again, then White backed away, saying he did not

want to fight. Waller responded by punching White two more times before someone 

broke up the fight.

Ashford heard a verbal confrontation between White and Waller about

“slap-boxing.” At that time, they were in front of her house, and she could see them 

outside of her front window. Ashford saw Waller start to walk away from White. As 

Waller was walking away, Ashford saw White go to the back of a nearby car, grab a 

gun, and start shooting at Waller. Once the shooting started, Ashford threw herself 

to the floor, presumably to avoid being in the line of fire. After things appeared to 

settle down, Ashford got up and saw Waller lying on the ground and saw a car drive 

over his body.

White presented a different version of what occurred. According to 

White, he walked away from Waller intending to walk home. He saw a friend sitting 

in a parked car nearby and stopped to ask for a ride. It was at that point that he 

noticed Waller approaching him. Waller was about 10-12 feet away. White did not 

remember how it happened, but he grabbed an AR-15 that was in the back seat of 

the car and told Waller to back up. Waller was unarmed. According to White, Waller 

became mad when White pulled out the rifle and kept coming closer. White told 

Waller to back up and started backing up himself. Waller kept coming, and White 

fired the first shot toward Waller’s leg. He shot two more times because Waller kept 

coming. White shot a fourth time and saw Waller’s arm move. Finally, he shot 

Waller in the face because he felt he had to do it to stop Waller from advancing. At 
some point, he realized that Laney was firing at him. White believed Laney fired 

about three times. White then took off running and ducked into a garage off 

Rudyard and Kipling. He eventually left the garage, leaving the AR-15 behind, and 

ran home.

When police arrived on Alhambra, everyone had gone from the vacant 

lot except Laney who was seated beside Waller’s body. Laney had sustained shots 

to his buttocks and hand. Police attempted to administer first aid until EMS arrived. 

Laney refused to give more than basic information and refused multiple requests to 

be interviewed.

Five large caliber bullet casings were found on both sides of the street, 

in front of and near Ashford’s home. All of the casings were fired from the AR-15. 

There was also evidence that another weapon had been fired. Waller was shot five 

times, in no particular order, once in the face, once in the chest, once in each arm,

and once in one of his toes. Further, Waller had a tire mark on his left arm.

It is unclear how White was identified as a suspect, but Ashford picked 

him out of a photo array shortly after the shooting. White was subsequently 

interviewed by police, where he denied being on Alhambra on the date of the 

shooting, and denied any knowledge of the shooting. However, DNA evidence 

collected from the AR-15 also linked White to the shooting.

Approximately six months before trial, the state produced an expert 

report regarding trace evidence pursuant to discovery. Among other things, it 

addressed the expert’s analysis of the muzzle-to-target distance involved in Waller’s 
shooting. The muzzle-to-target distance is a determination of the distance between 

the end of a firearm, i.e., the muzzle, to the target, which was Waller. The expert 

report concluded there was evidence that the shot to Waller’s chest occurred at an 

intermediate muzzle-to-target distance. The report defined “intermediate” as 

suggesting “that the muzzle of the firearm was located between approximately 1 foot 

and approximately 5 feet from the target surface when the firearm was discharged.” 

However, the report included a disclaimer indicating that the conclusions in the 

report were generalized to handguns.

At the bench trial, the state’s trace evidence witness testified in 

agreement with the trace evidence report that the evidence suggested an 

intermediate muzzle-to-target distance. Although not included in the report given 

in discovery, the expert opined that for a long gun, e.g., a rifle, like the one used in 

this case, he would estimate the distance to be around ten feet. White’s counsel did 

not object to this testimony, nor did he cross-examine the witness.

Subsequently, the state used the expert’s testimony to challenge 

White’s claim of self-defense. The state also highlighted the ten-foot distance in 

closing arguments.

Ultimately, the trial court found that the state proved beyond a 

reasonable doubt that White did not use deadly force in self-defense. The court 

found White not guilty of aggravated murder but guilty of the lesser included offense 

of murder under R.C. 2903.02(A). The trial court also found White guilty of murder 

under R.C. 2903.02(B), two counts of felonious assault, and discharge of a firearm 
on or near prohibited premises. The trial court found White guilty of all the 

associated one-year and three-year firearm specifications with each count as well. 

However, the trial court found White not guilty of the attempted murder charge and 

the specifications associated with that charge.

On March 31, 2021, the trial court sentenced White to a total prison 

term of life imprisonment with the possibility of parole in 27 to 28.5 years. 

On April 13, 2021, White filed a motion for new trial. On April 23, 

2021, while the motion for new trial was still pending, White filed a notice of appeal. 

On June 21, the trial court denied the motion for new trial.

On December 10, 2021, White filed a motion for limited remand in this 

court in order to allow the trial court to appropriately address the motion for new 

trial, assuming the trial court did not have jurisdiction to rule. This court granted 

the motion. White’s trial counsel moved for the appointment of new counsel. New 

counsel was appointed for White and a hearing was scheduled for January 20, 2022. 

However, at that hearing, White indicated that he had concerns about his appointed 

counsel’s representation.

1

 The trial court allowed appointed counsel to withdraw. 

The trial court then ruled on the motions filed by counsel. The trial court denied the 

motion for a new trial.

White appeals and assigns the following errors for our review.

1 White learned that one of the prosecutors who tried his case had quit the 

prosecutor’s office and was sharing office space with his appointed counsel. Despite 

assurances that the two did not work together, White was uncomfortable with the 

arrangement and wanted new counsel.
Assignment of Error No. 1

The defendant was denied due process of law and a fair trial due to 

violation of Crim.R. 16(K) by the state.

Assignment of Error No. 2

The appellant was denied his Sixth Amendment right to effective 

assistance of counsel due to the action or inaction of counsel below.

Assignment of Error No. 3

The lower court erred and abused its discretion in overruling the 

defense motion for new trial.

Assignment of Error No. 4

The verdict and judgment below must be vacated due to prosecutorial 

misconduct violation of Mr. White’s rights pursuant to the Sixth 

Amendment to the Constitution of the United States.

Assignment of Error No. 5

The verdict and judgment below finding the appellant guilty of murder 

pursuant to R.C. 2903.02(B) was based on legally insufficient evidence.

Assignment of Error No. 6

The verdict and judgment below finding the appellant guilty of murder 

pursuant to R.C. 2903.02(B) was against the manifest weight of the 

evidence.

Law and Analysis

For ease of analysis, we will address the assignments of error out of 

order.

Sufficiency of the Evidence

In the fifth assignment of error, White argues that his conviction for

murder pursuant to R.C. 2903.02(B) was based on insufficient evidence. 
Specifically, White challenges the trial court’s finding that the state proved beyond 

a reasonable doubt that White did not use deadly force in self-defense.

“A challenge to the sufficiency of the evidence supporting a conviction 

requires a determination of whether the state met its burden of production.” State 

v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. 

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Sufficiency of the 

evidence involves a review of the evidence admitted at trial and a determination of 

‘“whether such evidence, if believed, would convince the average mind of the 

defendant’s guilt beyond a reasonable doubt.”’ State v. Goins, 8th Dist. Cuyahoga 

No. 109497, 2021-Ohio-1299, ¶ 13, quoting State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph two of the syllabus. We must determine, “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. The question is not ‘“whether the state’s evidence is to be 

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

conviction.”’ Id., quoting Thompkins at 390. 

 In order for the appellant to be convicted of murder under R.C. 

2903.02(B), the state had to prove beyond a reasonable doubt that White caused the 

death of Waller as a proximate result of committing or attempting to commit an 

offense of violence that was a felony of the first or second degree. R.C. 2903.02(B).2

2 R.C. 2903.02(B) provides that no person shall cause the death of another as a 

proximate result of the offender’s committing or attempting to commit an offense of 
However, under R.C. 2901.05, a person is permitted to act in selfdefense. State v. Jackson, 8th Dist. Cuyahoga No. 108493, 2020-Ohio-1606, ¶ 16, 

citing R.C. 2901.05(B)(1). Essentially, if any evidence is presented at trial that tends 

to support that the defendant used force in self-defense, the state must prove beyond 

a reasonable doubt that the accused did not use that force in self-defense. Id., citing

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

In order to demonstrate the inapplicability of self-defense, the state 

must prove beyond a reasonable doubt any one of the following, 

(1) that the defendant was at fault in creating the situation giving rise 

to the affray; (2) that the defendant lacked a bona fide belief that he was 

in imminent danger of death or great bodily harm or that another 

means of escape from such danger existed negating the need for the use 

of deadly force; or (3) that the defendant violated a duty to retreat or 

avoid the danger. 

(Emphasis sic.) State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-Ohio-2037, 

¶ 14.

Sufficiency is a test of adequacy. Fairview Park v. Peah, 8th Dist. 

Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 38, citing Thompkins, 78 Ohio St.3d at 

386, 678 N.E.2d 541. When looking at the adequacy of the evidence to support a 

criminal conviction, we construe the evidence in a light most favorable to the 

prosecution to determine whether a rational trier of fact could have found the 

essential elements of the offense proven beyond a reasonable doubt. Id., citing

Jenks, 61 Ohio St.3d at 574, N.E.2d 492, paragraph two of the syllabus. In analyzing

violence that is a felony of the first or second degree and that is not a violation of section 

2903.03 or 2903.04 of the Revised Code.
self-defense, “‘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 * * * 

beyond a reasonable doubt’” that the defendant was not acting in self-defense. State 

v. Vandergriff, 1st Dist. Hamilton No. C-200282, 2021-Ohio-3230, ¶ 10, citing State 

v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting 

Jenkins at paragraph two of the syllabus.

In the instant case, there was overwhelming evidence of White’s guilt. 

It is undisputed that White shot Waller killing him, meeting the elements of R.C. 

2903.02. In addition, Waller was unarmed when White shot him. Further, 

according to Ashford, White grabbed the rifle as Waller was walking away from him. 

That testimony, if believed, would prove that White was both at fault for creating the 

situation giving rise to the shooting and that he lacked a bona fide belief that he was 

in imminent danger of death or great bodily harm.

Additionally, White’s testimony disproved his self-defense claim. 

Even if White’s testimony were believed and Waller was advancing on him, there 

was no evidence that placed White in fear of imminent danger of death or great 

bodily harm. According to White, he and Waller had been friends and never fought 

until the day of the shooting. If we believe White, Waller punched White because he 

felt that White should stand up for himself. At most, White painted a picture of 

someone who was trying to, although misguidedly, toughen him up, not someone 

intent on killing White. White’s response to pick up an assault rifle and shoot the 

unarmed man five times far exceeded a defensive response to his perceived danger. 
White’s disproportionate use of force belied his claim of self-defense. Given the 

foregoing, there was sufficient evidence in the record, that if believed by the trier of 

fact, supported a finding that White did not act in self-defense and supported a 

finding of guilt on the murder charge beyond a reasonable doubt.

Accordingly, we overrule the fifth assignment of error.

Weight of the Evidence

In the sixth assignment of error, White argues that his conviction for 

murder under R.C. 2903.02(B) was not supported by the greater weight of the 

evidence. Again, White argues that the trial court’s finding that the state proved he 

did not act in self-defense was not supported by the greater weight of the evidence.

“‘[W]eight of the evidence involves the inclination of the greater 

amount of credible evidence.”’ State v. Harris, 8th Dist. Cuyahoga No. 109060, 

2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. 

Weight of the evidence relates to “‘the evidence’s effect of inducing belief.”’ Id., 

quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, 

¶ 25, citing Thompkins at 386-387. The reviewing court must consider all of the 

evidence in the record, the reasonable inferences to made from it, and the credibility 

of the witnesses to determine “‘whether in resolving conflicts in the evidence, the 

factfinder clearly lost its way and created such a manifest miscarriage of justice 

* * *.’” Id., citing Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 

485 N.E.2d 717 (1st Dist.1983). Furthermore, in examining the manifest weight of 

the evidence, “the weight to be given the evidence and the credibility of the witnesses 
are primarily for the finder of fact.” State v. Metz, 2019-Ohio-4054, 146 N.E.3d 

1190, ¶ 70 (8th Dist.), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 

(1967), paragraph one of the syllabus. The trier of fact may “‘believe or disbelieve 

any witness or accept part of what a witness says and reject the rest.”’ Id., quoting 

State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). ‘“[A]n appellate court 

may not substitute its own judgment for that of the finder of fact.”’ Harris at ¶ 33, 

quoting State v. Maldonado, 8th Dist. Cuyahoga No. 108907, 2020-Ohio-5616, 

¶ 40, citing State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

Clearly, White shot Waller and killed him meeting the elements of 

R.C. 2903.02(B). The only question is whether he did so in self-defense. White 

argues that other than the trace evidence expert’s testimony, there was no credible 

evidence to refute his self-defense argument. We disagree. 

Again, the evidence establishes that Waller was unarmed when White 

shot him five times with an assault rifle. Even if Waller was advancing on White 

when he was shot, the evidence established that at most, Waller intended to finish 

the earlier fight, not that Waller intended to kill him or do great bodily harm. 

Further, Ashford’s testimony placed the rifle in White’s hand as Waller was walking 

away. 

The trial court’s decision finding that the state disproved self-defense 

was supported by the greater weight of the evidence. As such, the guilty finding for 

murder was also supported by the greater weight of the evidence.

Accordingly, we overrule the sixth assignment of error.
Crim.R. 16(K) Violation

In the first assignment of error, White argues that he was denied due 

process and the right to a fair trial when the state violated Crim.R. 16(K). 

Specifically, White takes issue with the state expert’s testimony that the muzzle-totarget distance was at least ten feet. White argues that the admission of that 

testimony violated the rule and allowed the state to introduce evidence that did 

irreparable harm to White’s self-defense claim. While we agree with White that the 

state’s actions violated Crim.R. 16(K), we find that White has failed to establish that 

he was prejudiced by the admission. 

As a preliminary matter we note that White did not object to the 

state’s expert testimony. “The failure to object to trial testimony forfeits all but plain 

error.” Awan, 22 Ohio St.3d at 120, 489 N.E.2d 277, ¶ 20, citing State v. Rogers, 

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23.

Under Crim.R. 52(B), we may notice plain errors affecting substantial 

rights, even though those errors were not brought to the attention of the trial court. 

“To constitute plain error, there must be: (1) an error, i.e., a deviation from a legal 

rule, (2) that is plain or obvious, and (3) that affected substantial rights, i.e., affected 

the outcome of the trial.” State v. Pratts, 8th Dist. Cuyahoga No. 104235, 2016-

Ohio-8053, ¶ 34, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002). A defendant is entitled to a plain error finding where it is established that 

but for the error, the outcome of the trial clearly would have been different. State v. 

Johnson, 8th Dist. Cuyahoga No. 99715, 2014-Ohio-2638, ¶ 94, citing State v. Long, 
53 Ohio St.2d 91, 372 N.E.2d 804 (1978); State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 

274 (2001). Even if the plain error standard is met, courts should only notice it “with 

the utmost caution, under exceptional circumstances and only to prevent a manifest 

miscarriage of justice.” Long, 53 Ohio St.2d at 91, 372 N.E.2d 804, paragraph three

of the syllabus.

In the instant case, the Supreme Court of Ohio has made clear that 

under Crim.R. 16(K) where an expert witness formulates opinions that the state 

intends to offer into evidence, those opinions must be set forth in the expert’s report 

giving the defendant formal notice and the opportunity to seek other expert-opinion 

testimony on the issue. State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 

N.E.3d 44, ¶ 57.

In the instant case, the state violated Crim.R. 16(K) by providing an 

expert report that did not include conclusions it intended to use at trial. The state 

witness’ testimony that the evidence suggested a muzzle-to-target distance of up to 

ten feet was outside the scope of the report provided to the defense and thus was in 

violation of Crim.R. 16(K). 

Although the state argues that the testimony was hypothetical and 

therefore permitted, we disagree. The state treated this “hypothetical” as fact by 

repeatedly referencing it in the cross-examination of White to discredit his 

testimony: 

State: You will agree with me that despite your belief here that your life 

was in danger that the first time a shot was fired that night was when 
you pulled up an AR-15 assault rifle and fired it at your good friend, 

* * * Waller, correct?

White: I was trying to get him to back off and he wouldn’t. He kept 

coming. Evidence show that.

State: You indicated to this Court that he was within two or three feet 

of you, correct?

White: I said I didn’t know the approximate feet. I said I believe. I 

don’t know.

State: What if I told you that trace evidence says, and the coroner 

says —

White: Five feet.

State: — that the majority of those shots, all but one came from a 

distance greater than 10 feet, correct?

White: I don’t — I don’t think it said that. I remember them saying 

five.

State: No. They said with an assault rifle it would be up to 10 feet they 

would expect to see gun powder on the area where it happened. Do you 

remember that?

White: I don’t remember, but, yeah.

State: So for four of those five shots you were at least 10 feet away from 

Shon Waller when you fired the gun, correct?

White: No. He was close to me. He wasn’t no 10 feet away from me.

(Tr. 562-563.)

The state further used the “hypothetical” distance in its closing 

argument, repeatedly asking the court to consider the ten-foot distance in 

determining whether White acted in self-defense. 

The penalty for a Crim.R. 16(K) violation is exclusion of the testimony 

at trial. Crim.R. 16(K) (“Failure to disclose the written report to opposing counsel 
shall preclude the expert’s testimony at trial.”). See also Boaston, 160 Ohio St.3d 

46, 2020-Ohio-1061, 153 N.E.3d 44, at ¶ 59 (It was error to allow expert’s testimony 

on subjects “not set forth in a written report prepared in compliance with Crim.R. 

16(K).”). The admission of the testimony satisfied the requirement under plain error 

analysis that there be a violation of a legal rule. It was also “obvious” under the 

second requirement of plain error. See Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 

1240 (defining a “plain” error as one that is a clear violation under current law).

The third prong focuses on whether the error affected a substantial 

right. In the context of a criminal trial, plain error that affects a substantial right is 

an error that affects the outcome of the trial. Pratts, 8th Dist. Cuyahoga No. 104235, 

2016-Ohio-8053, at ¶ 34. The burden is therefore on the appellant to demonstrate 

that there was a reasonable probability that the error resulted in prejudice. Rogers, 

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22, citing United States v. 

Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

White has not established a reasonable probability that the erroneous 

admission of evidence affected the result of the trial. Even if the expert testimony 

had been excluded, there was overwhelming evidence of White’s guilt. Furthermore, 

the remaining evidence after we remove the expert’s testimony disproved White’s

self-defense claim.

Additionally, this was a bench trial. As such, a trial judge is presumed 

to know the law and to have applied it accordingly. N. Olmsted v. Rock, 8th Dist. 

Cuyahoga No. 105566, 2018-Ohio-1084, ¶ 18, citing State v. Waters, 8th Dist. 
Cuyahoga No. 87431, 2006-Ohio-4895, ¶ 11, citing State v. Eley, 77 Ohio St.3d 174, 

180-181, 672 N.E.2d 640 (1996). 

Moreover, there is evidence in the record that the trial court did not 

consider the expert’s testimony. In the trial court’s ruling on White’s motion for new 

trial, the trial court noted that “even if a portion of [the trace evidence expert’s]

testimony was excluded it would not have changed the verdict in this case * * * due 

to the overwhelming evidence presented at trial.” The presumption that a trial court 

only considered reliable, relevant, and competent evidence remains unless “it 

affirmatively appears to the contrary.” Waters at ¶ 18, citing State v. Richey, 64 

Ohio St.3d 353, 595 N.E.2d 915 (1992). Given the foregoing, we cannot say that the 

testimony affected the outcome of the trial.

As there was overwhelming evidence of White’s guilt and no evidence 

that the trial court considered improper evidence in making its decision, White has 

failed to establish plain error.

Accordingly, we overrule the first assignment of error.

Prosecutorial Misconduct

In the fourth assignment of error, White argues that the state 

committed prosecutorial misconduct that was a violation of his constitutional rights 

when it violated Crim.R. 16(K) and that violation requires this court to vacate his 

convictions. White’s failure to object to the testimony, however, subjects this claim 

to plain error analysis. Failure to object to the admission of evidence at trial waives

all but plain error. State v. Chapman, 8th Dist. Cuyahoga No. 107375, 2019-Ohio-
1452, at ¶ 20, citing Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

at ¶ 23.

In the instant case White has failed to establish prosecutorial 

misconduct. When an allegation of prosecutorial misconduct relates to Crim.R. 16, 

reversible error is present “when there is a showing that (1) the prosecution’s failure 

to disclose was willful, (2) disclosure of the information prior to trial would have 

aided the accused’s defense, and (3) the accused suffered prejudice.” State v. 

Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 45; citing 

State v. Jackson, 107 Ohio St.3d 53, 79, 2005-Ohio-5981, 836 N.E.2d 1173, citing

State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983).

“‘Willful’ has been defined as ‘intent, purpose or design to injure.”’ 

State v. Thomas, 7th Dist. Belmont No. 17 BE 0028, 2018-Ohio-3768, ¶ 27, citing 

State v. Litton, 12th Dist. Preble No. CA2016-04-005, 2016-Ohio-7913, ¶ 11, quoting 

State v. Bowshier, 2d Dist. Clark No. 06-CA-41, 2007-Ohio-5364, ¶ 31. See also

Jackson at ¶ 78-79 (conduct not willful where state thought evidence was irrelevant 

and therefore it was unnecessary to produce it to defense); Parson at 442 (conduct 

not willful where state’s failure to produce evidence was negligent, the record did 

not reflect willful misconduct, further, prosecutorial misconduct not present since

the defendant was not prejudiced by the admission of the testimony on rebuttal). 

Since defense counsel did not object to the admission of the testimony, the trial court 

did not have an opportunity to ascertain the reasons for the state’s Crim.R. 16(K) 
violation.3 Nevertheless, the overwhelming evidence of White’s guilt precludes a 

finding of prejudice. Furthermore, the trial court affirmatively stated that the 

verdict would have been the same without the testimony. Therefore, White has 

failed to establish that he was prejudiced by the state’s conduct.

Accordingly, we overrule the fourth assignment of error.

Ineffective Assistance of Counsel

In the second assignment of error White argues that he received 

ineffective assistance of counsel when his lawyer failed to object to the admission of 

the trace evidence expert’s testimony. 

In order to establish ineffective assistance of counsel, a defendant 

must demonstrate that (1) counsel’s performance was deficient and fell below an 

objective standard of reasonableness and (2) that, but for counsel’s unprofessional 

errors, there is a reasonable probability that the result of the trial would have been 

different. State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216, ¶ 28 (8th Dist.), citing 

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). The defendant must satisfy both prongs of the test in order to prove 

ineffective assistance of counsel. Harris, 8th Dist. Cuyahoga No. 109083, 2020-

Ohio-4138, at ¶ 28, citing Strickland at 687. 

Under Ohio law, “every properly licensed attorney is presumed to be 

competent.” State v. Knight, 8th Dist. Cuyahoga No. 109302, 2021-Ohio-3674, ¶ 47, 

3 In its brief here and in its response to White’s allegation in his motion to new 

trial, the state argued the trace evidence report was sufficient because it concluded the 

muzzle-to-target distance was “intermediate.”
citing State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State 

v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, when 

“evaluating counsel’s performance on a claim of ineffective assistance counsel, the 

court must give great deference to counsel’s performance and ‘indulge a strong 

presumption’ that counsel’s performance ‘falls within the wide range of reasonable 

professional assistance.’” Id., quoting Strickland at 689.

In the instant case, White’s trial counsel acknowledged that he did not 

object to the trace evidence expert’s testimony, because he was surprised by it and 

not prepared to cross-examine the witness as a result. While there is evidence in the 

record that counsel should have been aware of the issues with the trace evidence 

report before trial, we need not determine the first prong, since White has failed to 

establish that he was prejudiced by counsel’s performance. This case was tried to 

the bench, and the trial court specifically noted that its verdict was not based on the 

inadmissible evidence. Additionally, the trial court is presumed not to have been 

impacted by the admission of improper evidence or the prosecution’s continued 

emphasis on it unless the record affirmatively demonstrates otherwise. Rock, 8th 

Dist. Cuyahoga No. 105566, 2018-Ohio-1084, at ¶ 18, citing Waters, 8th Dist. 

Cuyahoga No. 87431, 2006-Ohio-4895, at ¶ 11, citing Eley, 77 Ohio St.3d at 180-181, 

672 N.E.2d 640.

Based on the foregoing, White has failed to establish that he was 

prejudiced by his counsel’s conduct. Therefore, White has failed to establish that he 

received ineffective assistance of counsel.
Accordingly, we overrule the second assignment of error.

Motion for New Trial

Finally, in his third assignment of error and in his supplemental brief, 

White argues that the trial court erred in denying his motion for new trial. 

Specifically, White argues that it was error for the trial court to deny his motion 

without a hearing and to proceed after his appointed counsel withdrew from the 

case. Further, White argues that the trial court did not give due consideration to the 

state’s Crim.R. 16(K) violation. 

With respect to White’s argument that the trial court was required to 

hold a hearing, we disagree. Courts have consistently found that the decision to hold 

a hearing on a motion for new trial lies within the discretion of the trial court. 

Furthermore, Crim.R. 33 does not mandate a hearing. State v. Cannon, 8th Dist. 

Cuyahoga No. 103298, 2016-Ohio-3173, ¶ 16, citing State v. Smith, 30 Ohio App.3d 

138, 139, 506 N.E.2d 1205 (9th Dist.1986). In the instant case, the trial court elected 

to hold a hearing. However, when White requested new counsel, the trial court took 

into consideration the deadline set by this court to address White’s motion and 

instead ruled on the briefs already filed. This decision was well within its discretion. 

White also argues that the trial court erred in considering the motions 

when White was no longer represented. However, the trial court did not have a 

hearing after counsel was excused. At no time was White without legal counsel

during any significant stages of the proceedings. The court’s decision was based 

upon the written motions. Moreover, White has not argued that the motion for new 
trial was incomplete or deficient. White has not demonstrated that he was 

prejudiced by the trial court’s decision to rule on the written motions submitted by 

counsel. 

The trial court, therefore, did not err in deciding the issue on the 

motions. 

White raised several issues in his motion for new trial below, however, 

he has limited his argument on appeal to whether the Crim.R. 16(K) violation and 

its effects on White’s case warranted a new trial. The decision of whether or not to 

grant a motion for a new trial is within the sound discretion of the trial court and 

will not be overturned absent an abuse of that discretion. State v. Gilbert, 8th Dist. 

Cuyahoga No. 106358, 2018-Ohio-3789, ¶ 25, citing State v. Schiebel, 55 Ohio St.3d 

71, 76, 564 N.E.2d 54 (1990). An “abuse of discretion” is “more than an error of law 

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or 

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983) quoting State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980). 

In the instant case, White’s request for a new trial falls under Crim.R. 

33(A)(2) and (3), which state:

(A) Grounds. A new trial may be granted on motion of the defendant 

for any of the following causes affecting materially his substantial 

rights: * * *

(2) Misconduct of the jury, prosecuting attorney, or the witnesses for 

the state;

(3) Accident or surprise which ordinary prudence could not have 

guarded against; * * *.
Under Crim.R. 33(A)(2) where misconduct is alleged, a court 

conducts a two-step inquiry. State v. Heru, 9th Dist. Summit No. 24756, 2010-

Ohio-635, ¶ 2, citing State v. Herb, 167 Ohio App.3d 333, 2006-Ohio-2412, 855 

N.E.2d 115, ¶ 6 (9th Dist.). First, did misconduct occur; second, did the misconduct 

‘“materially prejudiced the defendant’s substantial rights.”’ Id., quoting Herb. 

Again, we review the trial court’s findings for an abuse of discretion and will not 

overturn a decision unless it is found. Id., citing Schiebel at paragraph one of the 

syllabus.

As previously noted, White has failed to establish prosecutorial 

misconduct, therefore we need not address the second prong of the test. White has 

therefore failed to establish that he was entitled to a new trial under Crim.R. 

33(A)(2).

White further alleges that he was blindsided due to the Crim.R. 16(K) 

violation and the admission of the trace evidence expert’s testimony. Crim.R. 

33(A)(3) permits a new trial on the grounds of “surprise which ordinary prudence 

could not have guarded against”; when that surprise materially affected the 

defendant’s substantial rights. Crim.R. 33. State v. LaMar, 95 Ohio St.3d 181, 

2002-Ohio-2128, 767 N.E.2d 166, ¶ 82. 

However, courts have found that a trial court acts well within its 

discretion to deny a motion for new trial under Crim.R. 33(A)(3) where defense 

counsel fails to raise the issue of surprise during trial. See State v. Samatar, 152 

Ohio App.3d 311, 2003-Ohio-1639, 787 N.E.2d 691, ¶ 52 (10th Dist.); LaMar at 
¶ 82-83. Since there was no objection, the trial court did not abuse its discretion in 

denying the motion on this basis. Nonetheless, it has already been determined that 

White’s substantial rights were not materially affected.

Accordingly, we overrule the third assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant 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 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., CONCURS;

KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY