[Cite as State v. Whatley, 2020-Ohio-763.]

Atty. Jane M. Hanlin, Jefferson County Prosecutor, Jefferson County Justice Center,

16001 State Route 7, Steubenville, Ohio 43952, for Appellee and 

Atty. Aaron Miller, Aaron Miller Law Office, LLC, 329 North Fourth Street, Steubenville, 

Ohio 43952, for Defendant-Appellant. 

 

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

JEFFERSON COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

JAMES WHATLEY, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 JE 0004 

 

Criminal Appeal from the 

Court of Common Pleas of Jefferson County, Ohio 

Case No. 16-CR-145 and 18-CR-77 

BEFORE: 

David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges. 

JUDGMENT: 

Affirmed. 
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Case No. 19 JE 0004

Dated: February 26, 2020 

 

D’APOLITO, J. 

{¶1} Appellant James J. Whatley, Jr. appeals his conviction by the Jefferson 

County Court of Common Pleas following a jury trial for one count of discharging a firearm 

at or into a habitat, in violation of R.C. 2923.161(A)(1), a felony of the third degree; one 

count of tampering with evidence, a violation of R.C. 2921.12(A)(1), a felony of the third 

degree; and one count of having a weapon while under disability, a violation of R.C. 

2923.13(A)(3), a felony of the third degree. In his sole assignment of error, Appellant 

contends that his trial counsel provided ineffective assistance because she did not 

challenge a police officer’s identification of Appellant from a surveillance pole video 

camera located in the area where two residences sustained bullet holes, and she did not 

object to the same police officer’s testimony that Appellant refused to provide a statement 

following his arrest. Based on the evidence in the record, Appellant has not demonstrated 

that his trial court’s performance was deficient or that he suffered any prejudice, and his 

conviction is affirmed. 

FACTS 

{¶2} Following a series of 9-1-1 calls reporting “shots fired” in the Pleasant 

Heights section of Steubenville, Ohio on April 26, 2018, Captain Joe Buchmelter was 

dispatched to the area of Plum Street and State Street at approximately 4:40 a.m. At 

5:02 a.m., he encountered Appellant and another man walking down Adams Street, which 

is in the neighborhood of Plum and State. Adams Street was deserted but for Appellant 

and the other man. 

{¶3} When Captain Buchmelter attempted to converse with them, they both fled. 

However, Captain Buchmelter was able to apprehend Appellant because his low-slung 

pants caused him to trip and fall when Office Buchmelter gave chase. The second man, 

later identified at Tyler Pesta, was never apprehended. Appellant was arrested by 

Captain Buchmelter and taken into custody. 

{¶4} During a search incident to arrest, Captain Buchmelter found an unspent 

9mm casing in Appellant’s pocket. Appellant told Captain Buchmelter that the pants he 
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Case No. 19 JE 0004

was wearing did not belong to him. Appellant explained at trial that he had lost 110 lbs. 

and was wearing his brother’s pants. 

{¶5} On Captain Buchmelter’s orders, officers retraced Appellant’s path and 

recovered a Helwan Luger 9mm semiautomatic pistol (“Luger”) on the sidewalk of Adams 

Street, at the same location where Captain Buchmelter first encountered Appellant and 

Pesta. When Captain Buchmelter informed Appellant that the Luger had been found, 

Appellant said, “You won’t find my fingerprints on it.” (Id. at 132.) 

{¶6} Captain Buchmelter performed a gunshot residue test on Appellant’s hands. 

Captain Buchmelter testified that he did not recall whether Appellant told him that he had 

been setting off fireworks several hours before he was apprehended. As a consequence, 

Captain Buchmelter did not record any use of fireworks on the gunshot residue 

information report that accompanied the kit to BCI. 

{¶7} During their investigation at the crime scenes, officers found an unspent 

9mm casing outside of the residence at 1219 State Street, as well as three bullet 

fragments that had penetrated the dwelling. A second residence, 1203 Plum Street, had 

been struck seven times, and nine spent casings and one unspent casing were found at 

the scene. A fourth unfired 9mm casing was found in Appellant’s pants pocket when he 

passed through the scanner at the police station. 

{¶8} Initially, Appellant denied having any relationship with or even knowing the 

identity of the other man. Appellant also denied discarding the Luger on Adams Street, 

and having any involvement in the crimes that occurred on State and Plum. Appellant 

told Captain Buchmelter that he was “at a shorty’s (female friend) house” when the “shot 

fired” calls were received, but he refused to provide her name. (Id. at 132-133.) 

{¶9} After the 9-1-1 calls were logged, dispatchers immediately reviewed video 

from surveillance pole cameras in the area of Plum and State, which captured Appellant 

and Pesta walking down the Maxwell Avenue just prior to the 9-1-1 calls. In the pole 

camera videos, Appellant had what appeared to be a gun in his hand. 

{¶10} The police investigation revealed additional circumstantial videotape and 

photographic evidence implicating Appellant in the crimes, which included a cellular 

telephone video of Appellant taunting rival gang members taken by Appellant and Pesta 

that same evening on Maxwell Avenue, and photographs of Appellant in the Pleasant 
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Case No. 19 JE 0004

Avenue area taken roughly ten days prior to April 26, 2018. Two of the photographs 

depict Appellant brandishing the Luger in front of 1203 Plum Street – one of the 

residences that sustained gunfire on April 26, 2018. There is also a photograph of 

Appellant brandishing the Luger in front of 1215 Plum Street, which Appellant explained 

at trial was taken because he believed at first and in error that a rival gang member stayed 

at that residence. A fourth photograph depicts Appellant brandishing the Luger in one 

hand, a .380 caliber handgun in his other hand, and a TEC-9 suspended from a cord 

around his neck. The photograph was taken in the basement of a residence in the south 

end of Steubenville. Additional videos from April 26, 2018 were taken on the south end 

and depict Appellant singing, dancing, and “throwing up gang signs” with another 

handgun and a TEC-9. 

{¶11} Other evidence included the content of a social media exchange between 

Appellant and Pesta via Facebook Messenger on April 25, 2018, which appears to 

document their plans to undertake some unidentified criminal activity the following day. 

The relevant portion of the exchange reads: 

Pesta: You tryna do that one thing tomorrow I’ll grab the tools from my 

moms. 

Appellant: Yea. 

Pesta: Say no more. 

Appellant: 100/100. 

Finally, the gunshot residue test revealed traces of gunpowder on Appellant’s hands. 

{¶12} On October 11, 2018, Appellant was interviewed with his counsel present 

by Detective Sergeant Mark Taylor and Officer Brian Bissett. Appellant had requested 

the interview. Appellant identified Pesta for the first time as his companion on the hill on 

April 26, 2018, and admitted that he recorded his presence in the area of Pleasant Heights 

controlled by rival gang members in order to post the videos on social media. Appellant 

admitted that he was brandishing the Luger in the videos. Appellant is depicted in the 
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Case No. 19 JE 0004

videos wearing a purple bandana (the rival gang’s color), and, in one of the videos, he 

announces that he is in their territory, and invites them to “come slide.” 

{¶13} During the interview, Appellant explained that the Luger was inoperable. He 

further explained that the reason that he and Pesta were on the hill on April 26, 2018 was 

to sell the Luger. When Pesta announced his intent to fire upon the residence where a 

man named “Dash” was known to stay, Appellant warranted that he turned back because 

he did not want to be involved in the crime. Dallas Fleshman was the boyfriend of the 

resident at 1203 Plum Street. 

{¶14} After listening to Appellant’s version of the events of April 26, 2018, 

Detective Taylor and Officer Bissett expressed disbelief that Appellant would enter rival 

gang territory with an inoperable handgun. They further questioned the veracity of 

Appellant’s statement that he did not attempt to fire the Luger at either of the two crime 

scenes on April 26, 2018, based on a ballistics report from BCI, which established that 

three of the four unspent 9mm cartridges in evidence had been cycled through the Luger. 

{¶15} At trial, the state offered the testimony of Michael E. Roberts, a firearms 

expert from Ohio BCI. Roberts testified that when he first examined the Luger, it was “out 

of battery,” that is, a lever on the hand gun was out of position. Roberts explained that 

the firing pin does not get struck by the hammer when the lever in the gun is out of 

position. However, even if a semi-automatic weapon is out of battery, a cartridge will 

nonetheless cycle through the weapon and be extracted without firing. Roberts further 

explained that “you can pull the trigger all day long and it’s not going to go off” when a 

firearm is out of battery. Roberts testified that, when he returned the lever to the correct 

position, the weapon fired as designed. 

{¶16} Roberts conceded that the spent bullets found at the crime scenes were not 

discharged from the Luger. However, three of the four unspent rounds – one of the two 

found on Appellant’s person; the one found at the crime scene on Plum Street; and the 

one found at the crime scene on State Street – were cycled through the Luger. The 

prosecutor asked, “And if that slide lever was not in the correct position and the gun was 

fired and it was ejected out, they all left the same – those all have the same markings as 

something that would have been fired from [the Luger]?” Roberts responded, “Yes, if it 
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Case No. 19 JE 0004

was fired or it was cycled [through the Luger] they all have the same extractor marks.” 

(Id. at 316-317.) 

{¶17} With the foregoing evidence admitted at trial, Appellant took the stand in his 

own defense and provided the following testimony. Appellant was convicted of heroin 

trafficking and burglary on September 19, 2016 and sentenced to an agreed aggregate 

sentence of eighteen months. He was released from prison on March 20, 2018, and was 

on postrelease control, as well as under a lifetime weapons ban, when he committed the 

crimes that are the subject of this appeal. 

{¶18} Appellant admitted his membership in two Steubenville street gangs. 

Although he was only affiliated with the gangs prior to his incarceration, he became a fullfledged member of the gangs after his release from prison. 

{¶19} Appellant and his (now deceased) friend were on the south end of 

Steubenville and shooting fireworks at the residence of Appellant’s next-door neighbor 

after midnight on April 26, 2018. At approximately 4:00 a.m., Pesta arrived in order to 

commit a burglary with Appellant. According to Appellant’s testimony, the exchange on 

Facebook Messenger from the previous day referred to a burglary the two men had 

planned to commit on April 26, 2018. However, Appellant told Pesta on April 26, 2018 

that he no longer wanted to commit the burglary. 

{¶20} During their conversation, Appellant informed Pesta that he intended to sell 

the Luger to an acquaintance on Snapchat because the Luger no longer functioned. 

Appellant testified that he raised the idea of selling the Luger as an alternative moneymaking venture instead of the planned burglary. 

{¶21} When Appellant’s counsel asked him how he knew the Luger was 

inoperable, Appellant responded: 

I put a bullet in the clip, in the magazine, put it in there, cocked it back, it 

would chamber the bullet, tried to shoot it into the ground, it wouldn’t shoot. 

I took the clip out, took the bullet out of the head, put it back in the clip, tried 

it again, tried five, six times, it would not shoot. 

(Id. at 412.) 
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Case No. 19 JE 0004

{¶22} Appellant testified on cross-examination that he only successfully fired the 

gun one time, the day that he bought it. Appellant conceded that he was photographed 

brandishing guns in the past, but claimed that he was not aware of the manner in which 

guns operated. 

{¶23} Pesta told Appellant that he knew a potential buyer who would pay a higher 

price than Appellant had negotiated with the buyer on Snapchat. Pesta told Appellant 

that the potential buyer had asked that the two men bring the gun to the “Maxwell side” 

of the hill. Although Appellant expressed hesitation about entering rival gang territory, 

Pesta said that they would not be in any danger because of the early morning hour. 

{¶24} Appellant conceded that he was wearing a black jacket, a red Under Armour 

shirt, a purple bandana, a white t-shirt, blue jeans and white shoes. Appellant testified 

that the purple bandana was a joke, as purple is the color worn by the rival gang. 

{¶25} Appellant and Pesta walked to Pleasant Heights in order to meet the 

potential buyer for the gun, and, along the way, took the videos entered into evidence 

with Appellant’s cellular phone. Appellant planned to post the videos to social media 

when he returned home in order to taunt the rival gang members. Appellant conceded 

that he is depicted in the cellular telephone video carrying the Luger and that he was 

under a weapons disability at the time. He explained that he did not believe he was acting 

in contravention of the law because the Luger was inoperable and it was not loaded. 

{¶26} Appellant testified that he gave all of his 9mm ammunition to Pesta prior to 

departing from the south end, because Appellant was selling the Luger and had no use 

for the cartridges. He explained that one cartridge fell to the ground, which he retrieved 

and attempted to hand to Pesta. However, Pesta was preoccupied with securing the rest 

of the ammunition in his pants’ pocket, so Appellant put the single cartridge in his own 

pocket in order to give it to Pesta at some later time. 

{¶27} As the men turned onto State Street from Maxwell Avenue, Pesta divulged 

his intent to “shoot up [the] crib” of a gang member named “Dash.” (Id. at 424.) After 

refusing to participate and attempting to dissuade Pesta, Appellant turned and walked in 

the opposite direction back toward Maxwell Avenue to Adams Street. 

{¶28} While on Adams Street, Appellant heard gunshots. Not long after, Pesta 

caught up with Appellant on Adams. Appellant testified that he fled when he was 
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Case No. 19 JE 0004

confronted by Captain Buchmelter because he believed he had an outstanding warrant 

for domestic violence. Appellant further testified that the Luger must have fallen from his 

jacket pocket, because he did not intentionally discard it. 

{¶29} Finally, Appellant explained that a friend took the photographs of Appellant 

in front of 1203 Plum Street because he knew that someone from the rival gang 

occasionally stayed there. Appellant was aware of this fact because his brother dated 

the sister of the mother of Dash’s child. 

{¶30} Appellant was found guilty on all counts. Although the jury was instructed 

as to Appellant both as a principal and, in the alternative, as an aider and abettor on the 

discharging a firearm at or into a habitat charge, he was convicted as a principal. The 

trial court sentenced Appellant to an aggregate term of imprisonment of thirteen years. 

This timely appeal followed. 

ASSIGNMENT OF ERROR 

THE APPELLANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF 

COUNSEL AT TRIAL: 

BY FAILURE OF TRIAL COUNSEL TO CHALLENGE DETECTIVE 

HOLZWORTH’S IDENTIFICATION OF THE DEFENDANT. 

BY FAILURE OF TRIAL COUNSEL TO OBJECT, MOVE TO STRIKE, 

AND SEEK A CORRECTIVE INSTRUCTION REGARDING DETECTIVE 

HOLZWORTH’S TESTIMONY THAT, WHILE IN CUSOTDY, THE 

APPELLANT DECLINED TO ANSWER QUESTIONS OF LAW 

ENFORCEMENT OFFICERS. 

{¶31} In order to prevail on a claim of ineffective assistance of counsel, an 

appellant must show that his counsel’s performance was deficient and that he was 

prejudiced by the deficiency. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio4153, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. 

In order to demonstrate prejudice, “[t]he defendant must show that there is a reasonable 
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Case No. 19 JE 0004

probability that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio3325, ¶ 11, citing Strickland at 694. Appellant bears the burden of proof on the issue of 

counsel’s ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 

(1999). 

{¶32} In Ohio, a licensed attorney is presumed competent. Id. Therefore, to fairly 

assess counsel’s performance, “a court must indulge a strong presumption that counsel's 

conduct falls within the wide range of reasonable professional assistance.” Strickland, 

466 U .S. at 689, 104 S.Ct. at 2065. 

{¶33} In the first part of Appellant’s sole assignment of error, he challenges his 

trial counsel’s failure to cross-examine Detective Regis Holzworth on his identification of 

Appellant from the pole camera on Maxwell Avenue. Appellant writes, “[c]ounsel did not 

inquire regarding the quality of the video; the distance between the camera and the 

Appellant; whether it was daylight or dark; the lighting conditions; whether the detective 

had previous encounters with the Appellant; or a description of the height, weight, and 

skin complexion of the person viewed [sic] the video.” (Appellant’s Brf., pp. 5-6.) The 

Maxwell Avenue pole camera video was admitted into evidence at trial. 

{¶34} Detective Holzworth testified that an arrestee’s clothing is collected and 

bagged when he or she arrives at the County jail. Detective Holzworth identified a pair of 

blue jeans, which were taken from Appellant by Detective Holzworth after Appellant’s 

arrest as the same blue jeans worn by one of the men in the pole camera video: 

Q When you watched [the pole camera video] did you notice anything 

about any individuals that may have been seen on that video? 

A A subject we identified as [Appellant] is – is observed on the City 

camera walking on Maxwell Avenue wearing in this case those same pants. 

* * * 
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Case No. 19 JE 0004

Okay. And so you looked at the pants that you recovered from the jail and 

the male seen on the Maxwell video you determined that that’s the same 

individual. 

A Yes. 

(Id. at 234-235.) Detective Holzworth further testified that Appellant had a gun in his hand. 

{¶35} Captain Buchmelter also identified Appellant as the man on the pole camera 

video and further stated that Appellant was carrying a gun. Captain Buchmelter testified 

that the two men in the pole camera footage were the same men that he pursued on 

Adams Avenue. However, Appellant does not challenge his trial counsel’s failure to 

cross-examine Captain Buchmelter’s identification of Appellant on the pole camera video. 

{¶36} The pole camera video from Maxwell Avenue is grainy and Appellant is not 

clearly identifiable. However, we find that Appellant cannot demonstrate any deficient 

performance by trial counsel or resulting prejudice because Appellant admitted that he 

was present on Maxwell Avenue with the Luger prior to the 9-1-1 calls on April 26, 2018. 

When his counsel asked him when the cellular telephone videos were taken, Appellant 

conceded, “The first one was on Maxwell, Maxwell Avenue* * * walking toward the food 

market.” He further conceded that the video was taken before the shooting. (Id. at 419.) 

In addition to Appellant’s admissions at trial, Appellant’s cellular telephone video place 

him on Maxwell Avenue according to the testimony of Officer Bissett, who identified 

landmarks in the background of the video to fix Appellant’s location. 

{¶37} Finally, Captain Buchmelter identified the individuals captured on the pole 

camera video as the men he first saw on Adams Avenue. Based on the evidence in the 

record establishing Appellant’s presence on Maxwell Avenue prior to the crimes occurring 

on April 26, 2018, we find that trial counsel’s failure to challenge Holzworth’s identification 

did not constitute deficient performance, nor did it prejudice Appellant. Accordingly, we 

find that the first part of Appellant’s sole assignment of error is not well-taken. 

{¶38} In the second part of Appellant’s sole assignment of error, he contends that 

his trial counsel provided ineffective assistance when she failed to object to and move to 

strike Detective Holzworth’s testimony that Appellant refused to talk to Detective 
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Case No. 19 JE 0004

Holzworth after Appellant’s arrest. On cross-examination, defense counsel asked 

Detective Holzworth if he was responsible for any other part of Appellant’s arrest in 

addition to photographing Appellant’s clothing. Detective Holzworth responded, “I went 

down to the County jail, attempted to speak with [Appellant]. He declined to make a 

statement.” Defendant counsel responded, “[Appellant] does not have to speak with you; 

correct?” Detective Holzworth responded, “That’s correct.” (Id. at 247-248.) 

{¶39} In State v. Reed, 10th Dist. Franklin No. 08AP-20, 2008-Ohio-6082, the 

defendant argued that his trial counsel provided ineffective assistance because he elicited 

testimony from a police officer on cross-examination regarding the defendant’s postarrest silence. Similar to the above-captioned appeal, defense counsel in Reed asked 

the arresting officer to recount the events of Reed’s arrest. The officer responded that he 

read Reed his rights, Reed signed a form documenting his refusal to answer questions, 

and, as a consequence, the officer did not ask Reed any questions. Reed’s trial counsel 

asked the officer to read the Miranda warning, in order to demonstrate that Reed was 

merely exercising his constitutional right to remain silent. Id. at ¶ 17-18. 

{¶40} Reed asserted that his trial counsel’s inquiry violated his Fifth Amendment 

right against self-incrimination, as recognized in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 

2240, 49 L.Ed.2d 91 (1976). According to Doyle, due process prohibits a state prosecutor 

from impeaching a defendant’s exculpatory story, told for the first time at trial, by crossexamining the defendant about his failure to have told the story after receiving Miranda 

warnings at the time of his arrest.” Id. at 611. 

{¶41} However, where a defendant’s post-arrest silence is elicited on crossexamination, Ohio courts have consistently found no Doyle violations. State v. Stevenson

(July 21, 2000), 6th Dist. Erie No. E–94–002 (because appellant’s trial counsel elicited 

two answers concerning the defendant’s post-Miranda silence, the rule in Doyle was 

inapplicable); State v. Vaughn (July 11, 1985), 8th Dist. Cuyahoga No. 49272 (the issue 

of the defendant’s post-arrest silence was raised first by the defendant’s counsel on direct 

examination; therefore, the defendant waived any rights under Doyle and the prosecution 

was permitted to cross-examine the defendant on this issue); State v. Lee (Dec. 31, 

1997), 11th Dist. Trumbull No. 95-T-5371 (Doyle inapplicable where appellant’s attorney 

facilitated the presentation of the testimony referring to appellant's silence after being 
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Case No. 19 JE 0004

given Miranda rights, and “admission of such testimony is not reversible error, since it 

was invited by the questioning of appellant's attorney”); State v. Lamb, 12th Dist. Butler 

No. CA 2002-07-171, 2003-Ohio-3870 (no Doyle violation of prosecutor’s crossexamination of the defendant regarding the defendant's post-arrest, post-Miranda silence 

where the issue was first raised by the defendant). 

{¶42} Recognizing that the facts in Reed did not establish that the prosecution 

commented at all, much less on its own initiative, on Reed’s silence, the Tenth District 

concluded that the prohibitions defined by Doyle were not applicable. The Reed Court 

held instead that “the scope of cross-examination falls within the ambit of trial strategy, 

and debatable trial tactics do not establish ineffective assistance of counsel.” Id. at ¶ 23, 

citing State v. Conway, 109 Ohio St.3d 412, 848 N.E.2d 810, 2006-Ohio-2815, ¶ 101, 

citing State v. Hoffner, 102 Ohio St.3d 358, 811 N.E.2d 48, 2004-Ohio-3430; State v. 

Campbell, 90 Ohio St.3d 320, 339, 738 N.E.2d 1178 (2000). The Tenth District concluded 

that defense counsel was attempting to elicit testimony that bolstered Reed’s recitation of 

the events of his arrest (he took the stand later in the trial), and that defense counsel trial 

strategy in attempting to bolster Reed’s future testimony was not unreasonable. 

{¶43} While the intent behind the general question at issue here is not 

ascertainable, the Ohio Supreme Court has noted that “experienced trial counsel learn 

that objections to each potentially objectionable event could actually act to their party's 

detriment.” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 

140, citing Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir.2006). As such, defense 

counsel’s decision not to move to strike an answer can be a trial tactic to prevent 

emphasizing the information inadvertently elicited. State v. Fuller, 7th Dist. Belmont No. 

14 BE 0016, 2016-Ohio-4796, ¶ 48, State v. Schlagheck, 6th Dist. Lucas No. L-00-1121, 

2001 WL 85158, *6 (Feb. 2, 2001). Such trial tactic is presumed to be used by defense 

counsel as part of trial strategy. Id. 

{¶44} Here, Detective Holzworth’s testimony regarding Appellant’s post-arrest 

silence was elicited on cross-examination. Defense counsel immediately asked Detective 

Holzworth to clarify that Appellant was not obligated to respond to questioning. The state 

did not refer to Appellant’s refusal to be interviewed in its redirect of Detective Holzworth, 

its cross-examination of Appellant, nor its closing argument, but, instead, referred solely 
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Case No. 19 JE 0004

to the evidence that Appellant’s story of the events of April 26, 2018 changed over time 

as additional evidence implicated him in the crimes. 

{¶45} Accordingly, we find that defense counsel’s failure to object or move to 

strike Holzworth’s answer could have been a tactic to avoid drawing additional attention 

to Appellant’s post-arrest silence. We further find that, assuming that the defense 

counsel’s performance was deficient, her failure to object or move to strike Detective 

Holzworth’s answer did not affect the outcome of the trial based on additional compelling 

evidence in the record that supports Appellant’s convictions. Therefore, we find that the 

second part of Appellant’s sole assignment of error is meritless. 

CONCLUSION 

{¶46} Because Appellant has failed to demonstrate that defense counsel’s 

performance was deficient or that he suffered any prejudice as a result her challenged 

conduct, Appellants sole assignment of error is overruled and his convictions are affirmed. 

Donofrio, J., concurs. 

Waite, P.J., concurs. 
[Cite as State v. Whatley, 2020-Ohio-763.]

 

 

For the reasons stated in the Opinion rendered herein, the assignment of error 

is overruled and it is the final judgment and order of this Court that the judgment of the 

Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

 

 

 

 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.