[Cite as State v. Levingston, 2017-Ohio-7032.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff - Appellee : Hon. John W. Wise, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

JOSHUA LEVINGSTON : Case No. 17CA6 

 : 

 Defendant - Appellant : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Richland County 

Court of Common Pleas, Case No. 

2016-CR-0650 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: July 31, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

GARY BISHOP JEFFEREY R. STIFFLER 

Prosecuting Attorney Badnell & Dick Co.. L.P.A. 

 21 North Walnut Street 

By: JOSEPH C. SNYDER Mansfield, Ohio 44902 

Assistant Prosecuting Attorney 

38 South Park Street 

Mansfield, Ohio 44902 
Richland County, Case No. 17CA6 2 

Baldwin, J.

{¶1} Defendant-appellant Joshua Levingston appeals his conviction and 

sentence from the Richland County Court of Common Pleas on one count of possession 

of drugs. Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On October 7, 2016, the Richland County Grand Jury indicted appellant on 

one count of possession of drugs in violation of R.C. 2925.11(A) and (C)(2)(a), a felony 

of the fifth degree. At his arraignment on November 3, 2016, appellant entered a plea of 

not guilty to the charge. 

{¶3} Thereafter, a jury trial commenced on January 5, 2017. At the trial, Brent 

Taylor, a Correctional Officer at Richland Correctional Institution, testified that he had 

received information that appellant, an inmate, had a narcotic on his person. As a result, 

appellant was strip searched by Officer Taylor. During the search, a “packet of some sort 

was in the fly of the boxer shorts” that appellant was wearing. Transcript at 142. Officer 

Taylor testified that appellant had cut a slit into the fold on the fly of his boxer shorts and 

that the contraband was located there. The substance was later tested by the crime lab 

and determined to be Buprenorphine (Suboxone). Officer Taylor testified that appellant 

also had a piece of paper in his boxer shorts with a series of numbers on it that could be 

used for the electronic transfer of money. According to Officer Taylor, appellant later 

thanked him after the drugs were found and did not deny ownership of the drugs or claim 

that they were planted on him. 

{¶4} During a taped interview with Ohio State Highway Patrol Trooper Charles 

Jackson, who was investigating the case, appellant indicated that he was a drug addict 
Richland County, Case No. 17CA6 3 

and confessed to hiding the drugs in his boxer shorts. Trooper Jackson testified that 

appellant never claimed that the substance was not his or that it was planted on him. 

{¶5} At the conclusion of the evidence and the end of deliberations, the jury, on 

January 6, 2017, found appellant guilty of possession of Buprenorphine. The jury further 

found that the Prosecutor proved beyond a reasonable doubt that appellant had a prior 

conviction for a drug of abuse offense. As memorialized in a Sentencing Entry filed on 

January 6, 2017, appellant was sentenced to 12 months in prison, to be served 

consecutively to his other cases. 

{¶6} Appellant filed a Notice of Appeal on January 17, 2017. On January 19, 

2017, appellant filed a pro se Motion for a New Trial pursuant to Crim.R. 33(A), arguing 

that he was entitled to a new trial because he was tried before a jury in prison clothes and 

shackled throughout the trial. This Court, pursuant to a Judgment Entry filed on February 

9, 2017, remanded the matter to the trial court to rule on the pending motion. The trial 

court later denied appellant’s motion. 

{¶7} Appellant now raises the following assignments of error on appeal: 

{¶8} I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANTAPPELLANT’S MOTION TO DISCLOSE THE CONFIDENTIAL INFORMANT. 

{¶9} II. THE TRIAL COURT ABUSED IT’S (SIC) DISCRETION IN 

OVERRULING DEFENDANT-APPELLANT’S MOTION TO CONTINUE AND, 

THEREFORE, ALSO VIOLATED DEFENDANT-APPELLANT’S RIGHT TO A FAIR 

TRIAL UNDER THE FIFTH AND SIXTH AMENDMENTS OF THE U.S. CONSTITUTION, 

MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT. 
Richland County, Case No. 17CA6 4 

{¶10} III. THE DEFENDANT-APPELLANT WAS DEPRIVED [OF] HIS SIXTH 

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL 

LEVEL. 

{¶11} IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY PROCEEDING 

WITH TRIAL WHILE DEFENDANT-APPELLANT WAS IN PRISON CLOTHING AND 

RESTRAINED, THEREBY VIOLATING APPELLANT’S DUE PROCESS RIGHTS TO A 

FAIR TRIAL. 

{¶12} V. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANTAPPELLANT’S MOTION FOR A NEW TRIAL. 

I 

{¶13} Appellant, in his first assignment of error, argues that the trial court erred in 

overruling his Motion to Disclose the Confidential Informant. 

{¶14} Appellant, on January 3, 2017, filed a “Motion to Disclose Identity of 

Confidential Informant.” Appellant, in his motion, specifically sought the name of the 

inmate who had had informed the Corrections Officer that appellant had drugs on his 

person. 

{¶15} The Supreme Court of Ohio has held that the identity of a confidential 

informant must be revealed where his or her testimony is vital to establishing an element 

of the crime, or would be helpful or beneficial in preparing a defense to criminal charges. 

State v. Williams, 4 Ohio St.3d 74, 446 N.E.2d 779 (1983), syllabus. The burden is on the 

defendant to establish the need to learn the informant's identity. State v. Payne, 6th Dist. 

Lucas No. L–04–0118, 2005–Ohio–7043, ¶ 41, citing State v. Parsons, 64 Ohio App.3d 

63, 69, 580 N.E.2d 800 (4th Dist.1989). However, disclosure is not required “where the 
Richland County, Case No. 17CA6 5 

informant did not actively participate in the criminal activity, or where the informant's role 

is that of a mere tipster.” (Internal citations omitted.) Id. 

{¶16} In the case sub judice, the informant was not an active participant in the 

criminal activity involved in this case, but merely acted as a tipster. The inmate merely 

informed the Corrections Officer that appellant had a controlled substance on his person. 

We find, therefore, that the trial court did not err in denying appellant’s motion. 

{¶17} Appellant’s first assignment of error is, therefore, overruled. 

II 

{¶18} Appellant, in his second assignment of error, contends that the trial court 

erred in denying appellant’s motion for a continuance. 

{¶19} “The grant or denial of a continuance is a matter which is entrusted to the 

broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 67, 423 

N.E.2d 1078 (1981). Therefore, an appellate court must not reverse a trial court's decision 

to deny a motion for continuance unless it finds that the trial court abused its discretion. 

Id. The term “abuse of discretion” 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). 

{¶20} Appellant, on January 3, 2017, filed a motion seeking a continuance of the 

trial scheduled to commence on January 5, 2017. Appellant, in his motion, indicated that 

a continuance was necessary so that he could ascertain the identity of the confidential 

informant “in efforts to make a defense to his criminal charge.” The trial court overruled 

appellant’s motion in chambers prior to the commencement of trial. 
Richland County, Case No. 17CA6 6 

{¶21} Because the trial court, as is stated above, did not err in overruling 

appellant’s motion seeking the identification of the name of the “confidential informant”, 

there was no reason for a continuance of the trial. We find, therefore, that the trial court 

did not abuse its discretion in denying the motion for a continuance. 

{¶22} Appellant’s second assignment of error is, therefore, overruled. 

III 

{¶23} Appellant, in his third assignment of error, maintains that he received 

ineffective assistance of trial counsel. 

{¶24} Our standard of review for ineffective assistance claims is set forth in 

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

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective 

assistance of counsel. First, we must determine whether counsel's assistance was 

ineffective; i.e., whether counsel's performance fell below an objective standard of 

reasonable representation and was violative of any of his or her essential duties to the 

client. If we find ineffective assistance of counsel, we must then determine whether or not 

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability 

of the outcome of the trial is suspect. This requires a showing there is a reasonable 

probability that but for counsel's unprofessional error, the outcome of the trial would have 

been different. Id.

{¶25} Trial counsel is entitled to a strong presumption all decisions fall within the 

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 

1998-Ohio-343, 693 N.E.2d 267. In addition, the United States Supreme Court and the 
Richland County, Case No. 17CA6 7 

Ohio Supreme Court have held a reviewing court “need not determine whether counsel's 

performance was deficient before examining the prejudice suffered by the defendant as 

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052. 

{¶26} Appellant initially argues that his trial counsel was ineffective in failing to 

prosecute pretrial motions on the record. As is discussed above, prior to trial, appellant 

filed a motion seeking the identification of the confidential informant and a motion for a 

continuance of the trial. Prior to defense counsel’s opening statement, the following 

discussion took place: 

{¶27} MR CORLEY: The two motions we talked about in chambers, whether they 

come in after the opening statements - - 

{¶28} THE COURT: We did have a discussion in chambers this morning about 

your motion to continue the trial, and also for the revealing of the person who told the 

C.O. that the defendant had drugs. I overruled those motions. We will make a more 

complete record when the jury is not here, but I’ve overruled both those motions. 

{¶29} MR. CORLEY: Thank you, Your Honor. 

{¶30} Transcript at 117. 

{¶31} A more complete record was never made. 

{¶32} As is stated above, we find that the trial court did not err in denying both 

motions. Moreover, assuming, arguendo, that defense counsel was ineffective in failing 

to develop the reasons for the denial of the two motions on the record, we cannot say that 

appellant was prejudiced since appellant confessed to owning the drugs and never 

indicated that the drugs had been planted on him. 
Richland County, Case No. 17CA6 8 

{¶33} Appellant also argues that his trial counsel was ineffective in failing to object 

to appellant being tried in prison clothing and restraints. Appellant notes that, during voir 

dire, his trial counsel pointed out to the jury that appellant was in a prison jumpsuit and 

shackled and that it was clear that he had had a run in with the law. Appellant also notes 

that a prospective juror, during voir dire, indicated that he would be biased because 

appellant was in an orange prison jumpsuit, had tattoos and had prior drug convictions. 

{¶34} In Estelle v. Williams , 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), 

the United States Supreme Court held that the State cannot, consistent with Fourteenth 

Amendment Due Process and Equal Protection rights, compel a defendant to stand trial 

before a jury while dressed in identifiable prison clothing. However, the failure to object 

to the court in regard to being tried in prison clothing serves to negate the presence of 

compulsion by the State needed to show a constitutional violation. See Estelle at 512-

513. 

{¶35} There is no evidence in the record that the trial court or the State compelled 

appellant to wear a prison jumpsuit and shackles during the trial. Rather, the issue before 

this Court is whether the failure of appellant's trial counsel to object to the court regarding 

appellant’s prison garb and shackles constitutes deficient performance and, if so, whether 

it prejudiced appellant's case. As noted by the court in Estelle at 508, “it is not an 

uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting 

sympathy from the jury.” We decline to second guess defense counsel’s decision. 

Moreover, in view of the overwhelming evidence at trial of appellant’s guilt, we cannot say 

that appellant suffered any prejudice. 
Richland County, Case No. 17CA6 9 

{¶36} In addition, after the prospective juror made comments about appellant’s 

prison jumpsuit, the trial court emphasized to both that juror, who was not seated on the 

jury, and the other jurors the importance of remaining impartial and requiring the State to 

prove appellant’s guilt beyond a reasonable doubt. Finally, as noted by appellee, “all of 

the relevant facts revolving around this case took place in a prison, Even if the Appellant 

appeared at trial wearing civilian clothes, the jury would still be very much aware that he 

was recently incarcerated in a prison and was likely still so incarcerated.” 

{¶37} Appellant’s third assignment of error is, therefore, overruled. 

IV 

{¶38} Appellant, in his fourth assignment of error, argues that the trial court 

committed plain error by proceeding with trial while appellant was in prison clothing and 

restrained. 

{¶39} Because trial counsel did not object to appellant being tried in prison attire 

or request that appellant be permitted to change into other clothing for trial, we may not 

reverse the conviction unless we find plain error. In criminal cases, plain error is governed 

by Crim. R. 52(B), which states: “Plain errors or defects affecting substantial rights may 

be noticed although they were not brought to the attention of the court.” An alleged error 

“does not constitute a plain error ... unless, but for the error, the outcome of the trial clearly 

would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, 

paragraph two of the syllabus. The Supreme Court has repeatedly admonished that this 

exception to the general rule is to be invoked reluctantly. “Notice of plain error under Crim. 
Richland County, Case No. 17CA6 10 

R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only 

to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus. 

{¶40} In the case sub judice, appellant was not compelled to wear jail clothing 

during the trial. In fact, there is no objection to appellant's attire or restraints on the record. 

See Estelle, supra. We find no plain error. 

{¶41} Appellant’s fourth assignment of error is, therefore, overruled. 

V 

{¶42} Appellant, in his fifth assignment of error, contends that the trial court erred 

in overruling his pro se Motion for a New Trial pursuant to Crim.R. 33(A). 

{¶43} Crim.R. 33 states, in pertinent part, as follows: “(A) Grounds. A new trial 

may be granted on motion of the defendant for any of the following causes affecting 

materially his substantial rights: Irregularity in the proceedings, or in any order or ruling of 

the court, or abuse of discretion by the court, because of which the defendant was 

prevented from having a fair trial.” 

{¶44} A motion for a new trial made pursuant to Crim.R. 33 is addressed to the 

sound discretion of the trial court and may not be reversed unless we find an abuse of 

discretion. State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990). An abuse of 

discretion implies that the trial court's judgment is arbitrary, unreasonable, or 

unconscionable. State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). 

{¶45} Appellant filed a pro se motion seeking a new trial pursuant to Crim.R. 

33(A), contending that his due process rights were violated when he was tried before a 

jury in his prison clothes and shackled throughout the trial proceedings. Appellant, in his 

motion, claimed that his trial counsel had purchased civilian clothing for him prior to trial 
Richland County, Case No. 17CA6 11 

and that he was not permitted to change into the same. He further asserted that he was 

denied the effective assistance of trial counsel when his trial counsel failed to object to 

proceeding to trial with appellant in prison clothing and shackles. 

{¶46} For the reasons set forth above in our discussion of appellant’s previous 

assignments of error, we find that the trial court did not abuse its discretion in denying 

appellant’s motion. The trial court’s decision was not arbitrary, unconscionable or 

unreasonable. 

{¶47} Appellant’s fifth assignment of error is, therefore, overruled. 

{¶48} Accordingly, the judgment of the Richland County Court of Common Pleas 

is affirmed. 

By: Baldwin, J. 

Gwin, P.J. and 

John Wise, J. concur.