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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION AT COLUMBUS

RICHARD A. CHATMAN, 

: 

Petitioner, Case No. 2:10-cv-1091 

: District Judge George C. Smith 

-vs- Magistrate Judge Michael R. Merz 

Warden, Ross Correctional Institution, 

: 

Respondent. 

REPORT AND RECOMMENDATIONS 

 Petitioner brought this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain 

relief from his convictions in the Franklin County Common Pleas Court for murder, tampering 

with evidence, and possession of weapons under disability (Petition, Doc. No. 1, PageID 1). 

Based on those convictions, he is serving a sentence of twenty-eight years to life in 

Respondent’s custody. 

 Petitioner pleads the following Ground for Relief: 

Ground One: Petitioner was deprived of his Sixth Amendment 

rights to the effective assistance of trial counsel. 

Supporting Facts: Counsel’s failure to object to the introduction 

of numerous gory, irrelevant and prejudicial photos whose 

probative value was substantially outweighed by their prejudicial 

effect and failure to request an in camera hearing regarding the 

testimony of the co-defendant. 

Ground Two: Petitioner was denied due process when the 

evidence is insufficient to convict him. 

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Supporting Facts: The state of Ohio failed to present sufficient 

evidence of complicity to murder and having a weapon while 

under disability. 

Ground Three: Petitioner was denied his right to confrontation 

and compulsory process. 

Supporting Facts: The trial court failed to provide petitioner a 

meaningful opportunity to present a complete defense so that his 

co-defendant could present testimony establishing petitioner’s 

innocence. 

(Petition, Doc. No. 1, PageID 5-9.) 

Procedural History 

 Chatman was indicted by the Franklin County Grand Jury on counts of aggravated 

murder and murder, two counts of tampering with evidence, and one count of having weapons 

while under disability. After waiving his right to trial by jury, he was convicted on all counts 

except for aggravated murder, as well as a firearm specification and a drive-by specification. 

Chatman appealed to the Tenth District Court of Appeals which affirmed. State v. Chatman, 

2009 Ohio 2504, 2009 Ohio App. LEXIS 2101 (Ohio App. 10th Dist. May 28, 2009). The Ohio 

Supreme Court declined to exercise jurisdiction over a further appeal. State v. Chatman, 123 

Ohio St. 3d 1409 (2009). Chatman then filed the instant Petition on December 6, 2010 (Doc. No. 

1). On Judge Deavers’ Order (Doc. No. 2), Respondent filed a Return of Writ on March 17, 

2011 (Doc. No. 5). Despite the expiration of over two years since then, Petitioner has not filed a 

reply to the Return. The case is therefore ripe for decision. 

 

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Analysis 

Ground One: Ineffective Assistance of Trial Counsel 

 In his First Ground for Relief, Chatman claims he received ineffective assistance of trial 

counsel when his trial attorney (1) failed to object to the admission of gruesome photographs and 

(2) failed to request an in camera hearing regarding the testimony of his co-defendant. This 

claim was raised as the first assignment of error on direct appeal. 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision 

is contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 

S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 

693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 

 The court of appeals decided the ineffective assistance of trial counsel claim as follows: 

[*P10] In his first assignment of error, appellant contends he was 

denied effective assistance of counsel. Specifically, appellant 

argues his counsel failed to object to the numerous gory and 

prejudicial photographs and failed to request an in camera hearing 

regarding the testimony of his co-defendant, Vinson. 

[*P11] To prove ineffective assistance of counsel, defendant must 

first prove that counsel's performance was deficient. Strickland v. 

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 

L. Ed. 2d 674. To meet the requirement, defendant must initially 

show counsel made errors so serious that counsel was not 

functioning as the "counsel" guaranteed by the Sixth Amendment. 

Id. "[A] court must indulge a strong presumption that counsel's 

conduct falls within the wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action 'might be 

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considered sound trial strategy.'" Id. at 689. (Citation omitted.) 

"Even debatable trial tactics do not constitute ineffective assistance 

of trial counsel." State v. Jordan, 10th Dist. No. 04AP-827, 2005 

Ohio 3790, P17, quoting State v. Nichols (1996), 116 Ohio App.3d 

759, 764, 689 N.E.2d 98. 

[*P12] Defendant must next demonstrate that counsel's deficient 

performance prejudiced the defense by showing that, were it not 

for the errors, the result of the trial probably would have been 

different. The failure to prove either prong of the Strickland test 

makes it unnecessary for a court to consider the other prong. 

[*P13] During the trial, the parties stipulated to the admission of 

the photographs, which included depictions of the crime scene as 

well as the autopsy. In addition, the parties stipulated that appellant 

was the driver of the Bronco and that Vinson was the shooter. 

Appellant's theory during the trial was that despite his being the 

driver, he in no way was an aider and abettor under the state's 

complicity theory. Nonetheless, appellant contends his trial 

counsel was ineffective in stipulating to the "gory, irrelevant and 

prejudicial photographs." (Appellant's brief at 4.) Specifically, 

appellant states that photographs were used to "hammer the point 

that Walton was a bloody mess, this was a gruesome shooting, and 

[appellant] should be found guilty." (Brief at 5.) Appellant also 

asserts the sole purpose of introducing the pictures was "to inflame 

the passions of the trier of fact." (Brief at 6.) Therefore, appellant 

asserts his counsel was ineffective in failing to object to the 

photographs' admission under Evid.R. 403, and/or in failing to 

limit the number of photographs admitted because there was no 

basis to admit the majority of the photographs. 

[*P14] Initially, we note that the admission of photographic 

evidence is left to the sound discretion of the trial court, and a trial 

court may indeed reject a photograph, otherwise admissible, due to 

its inflammatory nature if on balance the prejudice outweighs the 

relevant probative value. State v. Maurer (1984), 15 Ohio St. 3d 

239, 264-65, 15 Ohio B. 379, 473 N.E.2d 768. While concededly 

many of the photographs in this case are gruesome, "the mere fact 

that a photograph is gruesome or horrendous is not sufficient to 

render it per se inadmissible." Id. at 265, citing State v. Woodards

(1966), 6 Ohio St.2d 14, 25, 215 N.E.2d 568. 

[*P15] Further, as the Supreme Court of Ohio stated in Maurer, 

"[t]he fact that appellant stipulated the cause of death does not 

automatically render the photographs inadmissible." Id. at 265. 

Additionally, "relevant evidence, challenged as being outweighed 

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by its prejudicial effects, should be viewed in a light most 

favorable to the proponent of the evidence, maximizing its 

probative value and minimizing any prejudicial effect to one 

opposing admission." Id., citing United States v. Brady (C.A.6, 

1979), 595 F.2d 359. 

[*P16] Here, because there was not a jury as this matter was tried 

to the bench, the decision to stipulate to the photographs' 

admissibility could constitute sound trial strategy. Debatable trial 

tactics and strategies do not constitute a denial of effective 

assistance of counsel. Jordan, supra. Defense counsel's decision to 

stipulate to evidence is generally considered a tactical decision. 

State v. Townsend, 9th Dist. No. 23397, 2007 Ohio 4421, P27, 

citing State v. White (Nov. 15, 1995), 9th Dist. No. 16900, 1995 

Ohio App. LEXIS 5073. See also State v. Pridgen, 5th Dist. No. 

2004 CA 00313, 2005 Ohio 3291, reversed on other grounds, 107 

Ohio St. 3d 1421, 2005 Ohio 6124, 837 N.E.2d 1207 (strategic 

decision to stipulate to evidence did not constitute ineffective 

assistance of counsel). Had defense counsel objected to the 

admission of the photographs, the trial court would have then been 

required to review and scrutinize each and every photograph to 

determine its admissibility. Hence, we can discern a tactical 

decision from counsel's actions as the court, as trier of fact, would 

have reviewed the photographs nonetheless. For this same reason, 

appellant is unable to establish prejudice by his counsel's actions as 

the trial court would have reviewed these photographs regardless 

of whether or not defense counsel objected to their admission. We 

cannot say there is a probability sufficient to undermine the 

confidence in the outcome of this case; therefore, we are not able 

to find appellant was prejudiced by his counsel's actions. 

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. 

[*P17] Furthermore, "[w]e indulge in the usual presumption that in 

a bench trial in a criminal case the court considered only the 

relevant, material, and competent evidence in arriving at its 

judgment unless it affirmatively appears to the contrary." State v. 

White (1968), 15 Ohio St.2d 146, 151, 239 N.E.2d 65; State v. 

Nasser, 10th Dist. No. 02AP-1112, 2003 Ohio 5947, P57, appeal 

not allowed by 101 Ohio St. 3d 1490, 2004 Ohio 1293, 805 N.E.2d 

540. To demonstrate the trial court's decision was based on 

improper evidence, appellant directs us to the trial court's 

comments made at Vinson's plea and sentencing hearings that the 

photographs were "too gruesome to display" and that "this is by far 

the worst I've seen, the absolute worst." (Appellant's brief at 9.) 

With respect to his own proceedings, appellant goes on to contend 

only that the trial court "continued at [appellant's] sentencing 

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indicating that he listened and seen firsthand the gruesome details 

of the offense." (Brief at 9.) 

[*P18] First, the quoted portions of the trial court's comments are 

from Vinson's proceedings, not appellant's. Secondly, appellant's 

reference to the trial court's comments in his own case were, as 

appellant directs, made at appellant's sentencing, after appellant 

had been found guilty. Accordingly, we find nothing in the record 

to affirmatively demonstrate the trial court considered anything but 

relevant, material, and competent evidence in arriving at its 

judgment. While the photographs depicting the facts of this case 

are unpleasant, it is because they depict a close-range blow to the 

head from a shotgun. However, the record is devoid of any 

evidence that the trial judge, as trier of fact, was inflamed by the 

gruesome nature of the crime so as to undermine one's confidence 

in the verdict, that as will be discussed infra, is supported by the 

remaining evidence. State v. Keene, 81 Ohio St.3d 646, 1998 Ohio 

342, 693 N.E.2d 246. 

[*P19] Also under this assigned error, appellant contends that if 

this court should find the issue raised in his third assignment of 

error was not preserved for review, his trial counsel was ineffective 

on this basis as well. For the reasons following in our disposition 

of appellant's third assignment of error, we find no merit to this 

portion of appellant's argument. 

[*P20] Accordingly, we overrule appellant's first assignment of 

error. 

State v. Chatman, 2009 Ohio 2504, ¶¶ 10-20. 

 In this case the court of appeals applied the proper federal constitutional standard as 

enunciated in Strickland v. Washington, supra. As the court of appeals noted, since this was a 

trial to the bench, the trial judge would, in any event, have seen all of the photographs one by 

one if Petitioner’s counsel had objected. By stipulating to their admission, counsel at least had a 

chance that the trial judge would accept them as a group and not pay much attention to them. 

Furthermore, as the court of appeals held, when judges are triers of the fact, they are presumed to 

ignore irrelevant evidence they have seen. It was therefore not deficient performance to stipulate 

to their admission. 

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 As to the claim that counsel should have requested an in camera hearing regarding 

testimony of the co-defendant, the court of appeals found that the freestanding third assignment 

of error regarding calling co-defendant Vinson as a witness had no merit. It therefore held that 

there was no ineffective assistance of trial counsel in failing to ask for an in camera hearing 

regarding Vinson. This holding precludes any claim that it was ineffective assistance not to ask 

for the hearing: it cannot be deficient performance to fail to ask for a hearing where the result 

would not have had an impact on the case. 

 Because the court of appeals’ decision is entitled to complete deference under 28 U.S.C. 

§ 2254(d)(1), Petitioner’s First Ground for Relief is without merit and should be dismissed with 

prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should 

be denied a certificate of appealability on this Ground for Relief. 

Ground Two: Insufficient Evidence 

 In his Second Ground for Relief, Petitioner asserts he was convicted on insufficient 

evidence, challenging the sufficiency of evidence of complicity to murder and having a weapon 

under disability. 

 Chatman’s second assignment of error on direct appeal challenged both the sufficiency of 

the evidence and its manifest weight. The court of appeals decided this assignment of as 

follows: 

[*P21] In his second assignment of error, appellant challenges both 

the sufficiency and the weight of the evidence with respect to his 

convictions for complicity to murder and having a weapon while 

under disability. 

[*P22] The Supreme Court of Ohio described the role of an 

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appellate court presented with a sufficiency-of-the-evidence 

argument in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 

492, paragraph two of the syllabus: 

An appellate court's function when reviewing the 

sufficiency of the evidence to support a criminal 

conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if 

believed, would convince the average mind of the 

defendant's guilt beyond a reasonable doubt. 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. (Jackson v. Virginia

[1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 

560, followed[.]) 

[*P23] Whether the evidence is legally sufficient is a question of 

law, not fact. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 

1997 Ohio 52, 678 N.E.2d 541. In determining the sufficiency of 

the evidence, an appellate court must give "full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts." Jackson v. Virginia

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed. 2d 560. 

Consequently, the weight of the evidence and the credibility of the 

witnesses are issues primarily determined by the trier of fact. State 

v. Yarbrough, 95 Ohio St.3d 227, 2002 Ohio 2126, P79, 767 

N.E.2d 216; State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434 

N.E.2d 1356. Thus, a jury verdict will not be disturbed unless, after 

viewing the evidence in a light most favorable to the prosecution, it 

is apparent that reasonable minds could not reach the conclusion 

reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 

484, 2001 Ohio 4, 739 N.E.2d 749; Jenks, supra.

[*P24] A manifest-weight argument is evaluated under a different 

standard. "The weight of the evidence concerns the inclination of 

the greater amount of credible evidence offered in a trial to support 

one side of the issue rather than the other." (Citation omitted.) 

State v. Brindley, 10th Dist. No. 01AP-926, 2002 Ohio 2425, P16. 

In order for a court of appeals to reverse the judgment of a trial 

court on the basis that the verdict is against the manifest weight of 

the evidence, the appellate court must disagree with the fact 

finder's resolution of the conflicting testimony. Thompkins, at 387. 

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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., quoting State v. Martin

(1983), 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 

717. 

[*P25] A defendant is not entitled to a reversal on manifest-weight 

grounds merely because inconsistent evidence was presented at 

trial. State v. Raver, 10th Dist. No. 02AP-604, 2003 Ohio 958, 

P21. The determination of weight and credibility of the evidence is 

for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 

N.E.2d 212. The rationale is that the trier of fact is in the best 

position to take into account inconsistencies, along with the 

witnesses' manner and demeanor, and determine whether the 

witnesses' testimony is credible. State v. Williams, 10th Dist. No. 

02AP-35, 2002 Ohio 4503, P58; State v. Clarke (Sept. 25, 2001), 

10th Dist. No. 01AP-194, 2001 Ohio App. LEXIS 4302. The trier 

of fact is free to believe or disbelieve all or any of the testimony. 

State v. Jackson (Mar. 19, 2002), 10th Dist. No. 01AP-973, 2002 

Ohio 1257; State v. Sheppard (Oct. 12, 2001), 1st Dist. No. C000553, 2001 Ohio App. LEXIS 4590. Consequently, although an 

appellate court must act as a "thirteenth juror" when considering 

whether the manifest weight of the evidence requires reversal, it 

must give great deference to the fact finder's determination of the 

witnesses' credibility. State v. Covington, 10th Dist. No. 02AP245, 2002 Ohio 7037, P22; State v. Hairston, 10th Dist. No. 01AP1393, 2002 Ohio 4491, P17. 

[*P26] Appellant asserts there was no direct evidence that he was 

guilty of complicity to murder by aiding and abetting. In order to 

support a conviction for complicity by aiding and abetting in the 

commission of a crime, it must be shown that the defendant 

"supported, assisted, encouraged, cooperated with, advised, or 

incited the principal in the commission of the crime, and that the 

defendant shared the criminal intent of the principal." State v. 

Johnson (2001), 93 Ohio St.3d 240, 2001 Ohio 1336, 754 N.E.2d 

796, syllabus. The defendant's "intent may be inferred from the 

circumstances surrounding the crime." Id. "The mere act of driving 

away from the scene of a shooting perpetrated by a passenger of a 

vehicle has been held to be sufficient to uphold a conviction based 

on complicity where the circumstances show the driver knew shots 

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were being fired by the passenger." State v. Garner, 10th Dist. No. 

07AP-474, 2008 Ohio 944, P21, citing State v. Jones, 10th Dist. 

No. 02AP-1390, 2003 Ohio 5994. 

[*P27] Here, Wilson and Masters, two independent eyewitnesses 

from Guernsey County, Ohio, both testified that while stopped at a 

red light they saw Walton sitting in a car near the intersection of 

Kelton Avenue and Mooberry Street. Both Wilson and Masters 

testified a Bronco pulled up next to Walton's car, and then they 

heard a loud boom. According to Wilson, after the shot was fired, 

the driver of the Bronco "started pulling away really slow" and the 

driver "was just staring at us with his arm out of the window." (Tr. 

63-64.) As Masters drove up to Walton's car, Wilson testified the 

Bronco "slammed on his brakes." (Tr. 66.) During the trial, Wilson 

identified appellant as the driver of the Bronco. 

[*P28] Masters testified she was at the red light when she saw a 

black man sitting in his car. A Bronco pulled up at "a very slow 

rate" to the light. (Tr. 108.) Masters then heard a "big boom." (Tr. 

93.) After that, the Bronco "drove away real slow." (Tr. 96.) 

According to Masters, after the shot was fired, "he was going real 

slow in front of my car with his arm out the window staring at me 

in my face." (Tr. 93.) Indicating she would never forget the driver's 

face, Masters identified appellant at trial. 

[*P29] Masters pulled up to the black car as she was calling 911. 

Masters went to exit her car, but her daughter and [**19] boyfriend 

told her not to because the Bronco's brake lights came on; 

therefore, Masters left. Detectives from the Columbus Police 

Department went to Guernsey County the next morning to 

interview Masters and to show her a photo array, from which 

Masters identified appellant as the driver of the Bronco. 

[*P30] Moreover, appellant knew the shotgun was in the vehicle. 

According to Columbus Police Detective Wayne Buck, appellant 

told him Vinson got the shotgun out prior to stopping at the 

intersection, that the gun was on Vinson's lap, and that Vinson had 

it raised up to the window prior to them stopping at the red light. 

Appellant also told Detective Buck that this was not a planned act 

and that the gun was out because Walton was following appellant. 

[*P31] Appellant testified there was no plan to shoot Walton and 

that the only reason Vinson took the gun out of the bag was 

because Walton began following the Bronco containing appellant 

and his family. Cynthia also testified that Walton followed the 

Bronco for several blocks and that the Bronco was stopped first at 

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the red light when Walton pulled up next to them and reached 

down as if reaching for a weapon. 

[*P32] However, based on the evidence and the testimony of the 

witnesses, viewed in a light most favorable to the prosecution, as is 

required, we cannot say there is insufficient evidence to support 

the murder conviction based on complicity. The evidence offered 

demonstrated appellant was the driver of the vehicle from which 

Vinson fired a shot from a shotgun, of which appellant was aware 

was being aimed out the window. Further, the testimony of Wilson 

and Masters indicates Walton was stopped near the intersection 

when the Bronco pulled up next to Walton and does not support 

appellant's testimony that they were being followed by Walton. 

Thus, we cannot say there was insufficient evidence for the trial 

court as trier of fact to conclude appellant aided and abetted 

Vinson, or to make the inference that appellant shared Vinson's 

intent in the commission of the crime. See Garner, supra.

[*P33] Similarly, we cannot say that the conviction is against the 

manifest weight of the evidence. The basis for appellant's 

manifest-weight challenge is the witnesses' conflicting testimony 

and inconsistencies with respect to some of the details surrounding 

the events. Essentially, appellant challenges the witnesses' 

credibility. 

[*P34] All of what appellant argues, however, was presented to, 

and rejected by, the trier of fact. As previously stated, the weight to 

be given to the evidence and the credibility of the witnesses are 

issues primarily for the trier of fact. DeHass, supra. While this case 

does indeed turn on circumstantial evidence, as we indicated 

previously, the Supreme Court of Ohio has held that "[a] 

conviction can be sustained based on circumstantial evidence 

alone." State v. Franklin (1991), 62 Ohio St.3d 118, 124, 580 

N.E.2d 1, citing State v. Nicely (1988), 39 Ohio St.3d 147, 154-55, 

529 N.E.2d 1236. In fact, circumstantial evidence may "'"be more 

certain, satisfying and persuasive than direct evidence."'" State v. 

Ballew, 76 Ohio St.3d 244, 249, 1996 Ohio 81, 667 N.E.2d 369, 

quoting State v. Lott (1990), 51 Ohio St.3d 160, 167, 555 N.E.2d 

293, quoting Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S. 

325, 330, 81 S.Ct. 6, 11, 5 L. Ed. 2d 20. Furthermore, a conviction 

is not against the manifest weight of the evidence simply because 

the trier of fact chose to believe the prosecution's witnesses and to 

not believe appellant. State v. Rippey, 10th Dist. No. 04AP-960, 

2005 Ohio 2639. 

[*P35] After carefully reviewing the trial court's record in its 

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entirety, we conclude that there is nothing to indicate that the trier 

of fact clearly lost its way or that any miscarriage of justice 

resulted. Consequently, we cannot say that appellant's murder 

conviction is against the manifest weight of the evidence. 

[*P36] Regarding his conviction for having a weapon while under 

disability, appellant argues there was no evidence presented that he 

"ever knowingly acquired, had, carried, or used the firearm." 

(Appellant's brief at 16.) Therefore, appellant contends the only 

possible way to convict him of this charge was if he aided and 

abetted someone with a disability. Because there is no evidence in 

the record that Vinson was under a disability at the time of the 

shooting, appellant contends he cannot be convicted of having a 

weapon while under disability. 

[*P37] Appellant was found guilty of having a weapon while 

under disability ("WUD") in violation of R.C. 2923.13, which 

provides in pertinent part: 

(A) Unless relieved from disability as provided in section 2923.14 

of the Revised Code, no person shall knowingly acquire, have, 

carry, or use any firearm or dangerous ordnance, if any of the 

following apply: 

* * * 

(3) The person is under indictment for or has been 

convicted of any offense involving the illegal 

possession, use, sale, administration, distribution, or 

trafficking in any drug of abuse or has been 

adjudicated a delinquent child for the commission 

of an offense that, if committed by an adult, would 

have been an offense involving the illegal 

possession, use, sale, administration, distribution, or 

trafficking in any drug of abuse. 

[*P38] Here, it was stipulated that appellant was under indictment 

for possession of cocaine at the time of the offense, thus appellant's 

argument hinges on the notion that he did not possess the gun at 

issue. 

[*P39] In order to "have" a firearm, one must either actually or 

constructively possess it. State v. Hardy (1978), 60 Ohio App.2d 

325, 327, 397 N.E.2d 773; State v. Messer (1995), 107 Ohio 

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App.3d 51, 56, 667 N.E.2d 1022. "Constructive possession exists 

when an individual exercises dominion and control over an object, 

even though that object may not be within his immediate physical 

possession." State v. Wolery (1976), 46 Ohio St.2d 316, 329, 348 

N.E.2d 351, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 

301. Constructive possession may also be achieved by means of an 

agent. Hardy, at 327; United States v. Clemis (C.A.6, 1993), 11 

F.3d 597, cert. denied, 511 U.S. 1094, 114 S. Ct. 1858, 128 L. Ed. 

2d 481 (constructive possession of a firearm exists when a 

defendant knowingly has the power and intention at any given 

time to exercise dominion and control over a firearm, either 

directly or through others). Moreover, we recognize that 

constructive possession of a weapon, even absent actual physical 

possession, may be established by a totality of evidence 

establishing an accomplice relationship between the physical 

possessor and his or her accomplice. State v. McConnell (Oct. 13, 

1983), 8th Dist. No. 45294, 1983 Ohio App. LEXIS 13756. Thus, 

if appellee proved beyond a reasonable doubt that appellant 

constructively possessed the firearm, then appellant could indeed 

be found guilty of having a weapon while under disability, and 

whether or not Vinson had a disability would be irrelevant. 

[*P40] From the testimony, including that of appellant, although 

Vinson used the weapon, appellant had knowledge of its presence. 

Appellant testified he knew Vinson obtained the gun a few days 

prior to the shooting, knew the gun was in the vehicle on the day of 

the shooting, and saw Vinson hold the gun up to the window upon 

stopping at the intersection. Further, regarding the gun, appellant 

testified, "I always drive the truck, so it stayed on the passenger's 

side like in the behind on the side of the passenger's side." (Tr. 

256.) 

[*P41] Based on the record, we find sufficient evidence that 

appellant possessed the firearm. State v. Ridley, 10th Dist. No. 

03AP-1204, 2005 Ohio 333 (defendant and accomplice who used 

the gun to commit robbery were in close proximity of gun such 

that it was easily accessible to defendant and one could find 

possession for purposes of WUD charge); State v. Dorsey, 10th 

Dist. No. 04AP-737, 2005 Ohio 2334 (The defendant had the 

ability to exercise dominion and control over the firearm found in 

between the console and the passenger's seat, thus he 

constructively possessed it.). Furthermore, we cannot say the trial 

court clearly lost its way or that the conviction constitutes a 

manifest miscarriage of justice. 

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[*P42] For the foregoing reasons, appellant's second assignment of 

error is overruled. 

State v. Chatman, 2009 Ohio 2504, ¶¶ 22-41. 

 The court of appeals was careful to distinguish between the questions of sufficiency of 

the evidence and manifest weight of the evidence. Only the sufficiency of the evidence claim 

can be considered in habeas corpus because Federal habeas corpus is available only to correct 

federal constitutional violations. 28 U.S.C. §2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. 

Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 

455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a 

federal habeas court to reexamine state court determinations on state law questions. In 

conducting habeas review, a federal court is limited to deciding whether a conviction violated the 

Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 

(1991). The Due Process Clause of the Fourteenth Amendment prohibits a conviction on 

insufficient evidence. Jackson v. Virginia, supra. However there is no federal constitutional 

right to a new trial when the conviction is against the manifest weight of the evidence. 

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 

110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to 

groups who might view facts differently than we would. First, as in 

all sufficiency-of-the-evidence challenges, we must determine 

whether, viewing the trial testimony and exhibits in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the 

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evidence, re-evaluate the credibility of witnesses, or substitute our 

judgment for that of the jury. See United States v. Hilliard, 11 F.3d 

618, 620 (6th Cir. 1993). Thus, even though we might have not 

voted to convict a defendant had we participated in jury 

deliberations, we must uphold the jury verdict if any rational trier 

of fact could have found the defendant guilty after resolving all 

disputes in favor of the prosecution. Second, even were we to 

conclude that a rational trier of fact could not have found a 

petitioner guilty beyond a reasonable doubt, on habeas review, we 

must still defer to the state appellate court's sufficiency 

determination as long as it is not unreasonable. See 28 U.S.C. § 

2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas 

corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and 

then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. 

Palmer, 541 F.3d 652 (6th Cir. 2008). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of 

judicial deference. First, on direct appeal, "it is the responsibility of 

the jury -- not the court -- to decide what conclusions should be 

drawn from evidence admitted at trial. A reviewing court may set 

aside the jury's verdict on the ground of insufficient evidence only 

if no rational trier of fact could have agreed with the jury." 

Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 

311, 313 (2011) (per curiam). And second, on habeas review, "a 

federal court may not overturn a state court decision rejecting a 

sufficiency of the evidence challenge simply because the federal 

court disagrees with the state court. The federal court instead may 

do so only if the state court decision was 'objectively 

unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___, 

130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam). 

 Having reviewed the court of appeals’ decision on the sufficiency of the evidence 

questions, this Court cannot say that they are objectively unreasonable applications of Jackson v. 

Virginia. Petitioner’s Second Ground for Relief should be dismissed with prejudice. Because 

reasonable jurists would not disagree with this conclusion, Petitioner should be denied a 

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certificate of appealability on this Ground for Relief. 

Ground Three: Denial of Right to Confrontation and Compulsory Process 

 In his Third Ground for Relief, Petitioner claims the trial court denied him the right to 

present a complete defense and his rights under the Confrontation Clause. The cognate claim on 

direct appeal was the third assignment of error which the court of appeals decided as follows: 

[*P43] In his third assignment of error, appellant contends the trial 

court denied him the ability to present a complete defense. Under 

this assigned error, appellant asserts he desired to call Vinson as a 

witness but was precluded because the prosecution indicated it 

would withdraw Vinson's plea bargain if Vinson testified for 

appellant. Also under this assigned error, appellant asserts the trial 

court erred in not requiring Vinson to take the stand to determine 

whether or not he would assert his Fifth Amendment rights. In 

support of this argument, appellant relies on Columbus v. Cooper

(1990), 49 Ohio St.3d 42, 550 N.E.2d 937. 

[*P44] The trial court, however, committed no error in either 

regard. As the record reflects, the trial court stated: 

Certainly, if you would like to call him as a witness 

and you believe that he may testify, you can call 

him, and we will see whether or not he asserts his 

Fifth Amendment rights. If he does so, we can do 

that. (Tr.19.) 

[*P45] Moreover, even if appellant had called Vinson to testify, as 

recently stated by this court in State v. Whiteside, 10th Dist. No. 

08AP-602, 2009 Ohio 1893, despite the defendant's reliance on 

Cooper, there is no "right" of a defendant to call a witness solely 

for the purpose of invoking his or her Fifth Amendment rights. Id. 

at P58, citing State v. Reed, 10th Dist. No. 08AP-20, 2008 Ohio 

6082, P54. The Supreme Court of Ohio in State v. Kirk (1995), 72 

Ohio St.3d 564, 1995 Ohio 204, 651 N.E.2d 981, expressly limited 

and distinguished Cooper and held that a trial court may exclude a 

person from appearing as a witness on behalf of a criminal 

defendant at trial if the court determines that the witness will not 

offer any testimony but merely intends to assert the Fifth 

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Amendment privilege against self-incrimination. Id. at paragraph 

one of the syllabus. 

[*P46] Despite Kirk's holding, appellant relies on State v. Reiner

(2001), 93 Ohio St.3d 601, 2001 Ohio 1800, 757 N.E.2d 1143

("Reiner II"). This court has noted, however, in previous cases that 

while persuasive, Reiner II was a plurality decision and, therefore, 

is not controlling. See Whiteside; Reed. Also, as noted in 

Whiteside, Reiner II did not discuss Kirk, and our research has 

revealed no case that has cited Reiner II for the proposition set 

forth by appellant. Instead, Kirk continues to be cited for its 

holding that a trial court may exclude a person from appearing as a 

witness on behalf of a criminal defendant at trial if the court 

determines that the witness will not offer any testimony but merely 

intends to assert the Fifth Amendment privilege against selfincrimination. Whiteside, at P60. 

[*P47] Therefore, while it does not appear the trial court ever 

precluded appellant from calling Vinson as a witness, even if 

appellant had made such a request, the record reflects a strong 

indication that Vinson would have asserted only his Fifth 

Amendment rights, and, therefore, there would be no error in the 

trial court's exclusion of such testimony. 

[*P48] Accordingly, appellant's third assignment of error is 

overruled. 

State v. Chatman, 2009 Ohio 2504, ¶¶ 43-48. 

 It is difficult to tell what Petitioner might mean by claiming a Confrontation Clause 

violation here. The Confrontation Clause applies only to testimony against a defendant, and 

Petitioner points to no testimony against him which did not happen in open court, subject to 

cross-examination. 

 As to the claim that he was precluded from presenting a complete defense by not being 

able to put his co-defendant on the stand, the court of appeals notes that he was not prevented 

from doing so if the co-defendant had helpful testimony to offer. On the other hand, there is no 

federal constitutional right to put a co-defendant on the stand to force him or her to plead the 

privilege against self-incrimination because that is not testimony and not relevant to whether or 

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not a defendant is himself guilty: while the jury improperly may infer a person’s guilt from his 

pleading the Fifth Amendment, it is in fact not an admission. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition be 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and this Court should certify to the Sixth 

Circuit that and appeal would not be taken in objective good faith and therefore should not be 

permitted to proceed in forma pauperis. 

March 25, 2013. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen 

days because this Report is being served by one of the methods of service listed in Fed. R. Civ. 

P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendations are based in whole or in part upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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