[Cite as State v. Gillman , 2021-Ohio-4377.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Crai g R. Baldwin, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vs- Case No. 20-CA-00018 JACK J. GILLMAN Defendant-Appellant O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of Common Pleas, Case No. 19-CR-66

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: December 9, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

NANCY RIDENOUR JAMES S. SWEENEY Assistant Prosecutin g Attorne y 285 S. Libert y Stree t 111 North Hi g h Stree t Powell, Ohio 43065 P.O. Box 569 New Lexin g ton, Ohio 43764-0569Hoffman, J. {¶1} Defendant-appellant Jack Gillman appeals his conviction and sen tence entered by the Perry County Court of Common Pleas, on one count of burglary, following a jury trial. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE AND FACTS {¶2} On September 20, 2019, the Perry County Grand Jury indicted App ellant on one count of burglary, in violation of R.C. 2911.12(A)(2), a felony of the second degree; and one count of theft, in violation of R.C. 2913.02(A)(1), a f elony of the fifth degree. Appellant appeared before the trial court for arraignment on Oc tober 1, 2019, and entered a plea of not guilty to the Indictment. Appellant was released on his own recognizance. {¶3} The matter proceeded to trial on August 24, 2020. The followin g evidence

was adduced at trial. {¶4} Gregory Sharrick testified he left his home at 12090 Tunnel Hil l Road, Crooksville, Perry County, Ohio, at approximately 6:40 a.m. on March 23, 2019, to go to work at Cooper Standard Automotive in New Lexington. Sharrick arrived home at approximately 4:30 p.m. When he pulled into his driveway, he f ound the top door, which he had locked when he left, was opened and the light was on. H e immediately knew

someone had broken into his home. He entered the residence thr ough the basement

door and discovered the house had been ransacked. {¶5} As Sharrick walked through the house, he noticed his Ball watch and arrowhead collection were missing from his bedroom. A chainsaw , tools, a tool chest, and a bottle of prescription medication, which had recently bee n filled, were also missing. Sharrick contacted the Perry County Sherriff’s Office. Deputy Eveland arrived at theresidence to investigate. Deputy Eveland took photographs duri ng the course of his investigation. Sharrick identified the photographs. {¶6} Sharrick stated his house is equipped with Night Owl video surv eillance cameras, which time-stamped the recordings. The camera insta lled above the top door of the residence captured the break-in, which occurred shortly after 7:00 a.m. The video surveillance footage of the break-in was played for the jury. The video, which was recorded in night vision mode, shows two men come onto the top deck, attempt to pry open the lock, but ultimately smash in the door and enter the r esidence. The men’s faces cannot be seen. The camera above the top door, likewise, captu red the men leaving the residence at approximately 7:29 a.m. This footage also was pla yed for the jury. The video, which was recorded in daylight mode, shows the same two men exiting the residence. One of the men is carrying a chainsaw as well as a pillowcase filled with items taken from the home. The video captured both men’s faces. {¶7} Matthew Mehl, Appellant’s co-defendant, testified Appellant cam e to his house on March 22, 2019, and talked about robbing a house he (A ppellant) had driven by multiple times while taking his girlfriend back and forth to work. The following morning, Mehl and Appellant drove from Appellant’s residence to a cemete ry near Crooksville School. Before leaving, Mehl took a Xanax which caused him to fall asleep during the ride. Mehl woke up as Appellant was driving into the cemetery. The men walked from the cemetery through the woods to Sharrick’s residence. {¶8} Mehl and Appellant entered the house. Mehl noticed a leather c ouch and

a wall-mounted television. He sat down on the couch and fell a sleep. The next thing Mehl recalled was Appellant “hollering” for him from the basement. Appellant came upstairswith “a Poulan chainsaw, and a Task Force tool set, and a pillo wcase full of stuff.” Tr. at 104. Appellant handed the items t o Mehl, telling Mehl he had “ some more stuff” he wanted “to get.” Id . Appellant walked out the door and Mehl followed. The men re turned to Appellant’s vehicle and left th e area, Appellant telling Meh l he had changed his mind about getting “more stuff.” {¶9} Mehl hid the chainsaw and the tool set along the road. Appella nt then drove him to his “baby’s mom’s house.” Mehl woke up the next morning and “realized it was on Facebook and everything, and I was getting ready to bring the s tuff back up.” Id . at 104. When asked what was on Facebook, Mehl explained, “Pictures of m e and [Appellant] breaking in to the house.” Id . Mehl planned to “go get the stuff that I had hid along the road and come up to the sheriff’s office and turn it in because I knew what I did was wrong.” Id . at 105. Before he was able to return the items to the author ities, Deputy Eveland arrived at his residence. Mehl gave Deputy Eveland a v oluntary statement and signed a Miranda waiver. Mehl indicated he was not “given any promises of a better deal”

when he made his statement. Id

. {¶10} Mehl identified a photograph of Sharrick’s residence as the hou se he and Appellant broke into. In another photograph, Mehl identified h imself as the individual carrying a chainsaw, a tool se t, and a pillowcase out of Sharri ck’s residence. Mehl identified a photograph of Appellant as the individual with who m he broke into Sharrick’s

residence and stole the items. Mehl delivered the chainsaw and tool set to the police. According to Mehl, Appellant w as in possession of the pillowcas e and the contents. {¶11} On cross-examination, Mehl stated Appellant picked him up from his baby’s mom’s house between 10:00 and 11:00 p.m. on March 22, 2019. Me hl indicated he andAppellant broke into the house between 8:00 and 9:00 a.m. on Ma rch 23, 2019, but added he was “[n]ot exactly” sure of the time. Id . at 115. On re-direct, when asked what he and Appellant did from the time Appellant picked him up on the even ing of March 22, 2019, until they broke into Sharrick’s residence on the morning of th e 23 rd , Mehl responded, “I don’t remember. Mostly rode around that night.” Id . at 123. On re-cross examination, when asked where he stayed after Appellant picked him up, Mehl explained, “I stayed up – well, I slept in his vehicle is where I stayed. We drove aro und.” Id . at 124. {¶12} Deputy Brandon Eveland, who was a patrol sergeant with the Perr y County Sherriff’s Department in March, 2019, testified on March 23, 20 19, he was dispatched to the home of Gregory Sharrick in response to a theft. 1 Sharrick provided Deputy Eveland with a list of the stolen items. The deputy collected evidence including video taken from Sharrick’s surveillance cameras. When he returned to the Perry County Sherriff’s Department, Deputy Eveland poste d the video and still photograp hs on the Sherriff’s Department’s public Facebook page. {¶13} Later that evening, as a result of the Facebook post, Matthew M ehl was identified as a suspect. Deputy Dixon, who was familiar with M ehl, provided Deputy Eveland with Mehl’s address. Deputies Eveland and Ross proceed ed to Mehl’s residence. Mehl agreed to speak to the deputies. Mehl “immed iately began giving a voluntary statement, and then he was advised of his Miranda rig hts.” Id . at 131. Deputy Eveland informed Mehl he was under no obligation to speak with him. Mehl signed a

Miranda waiver form.

1 Brandon Eveland was employed with the City of Lancaster Police Department at the time of the trial. Throughout the trial, he is addressed as both Deputy Eveland an d Officer Eveland. For consistency, we chose to address Brandon Eveland as Deputy Eveland in this Opin ion.{¶14} Mehl told Deputies Eveland and Ross Appellant told him he (Appe llant) needed money. He and Appellant went to the residence, forced e ntry, and stole a chain saw, a tool set, and a bag of unknown items. Mehl indicated he and Appellant left the residence after approximately 30 minutes. Mehl did not tell De puties Eveland and Ross where he went after he and Appellant left the Sharrick residenc e. {¶15} Deputy Eveland testified he spoke with Mehl on three separate o ccasions and noted Mehl gave the same or similar statements each time. Deputy Eveland added Mehl’s trial testimony was similar to the statements he (Mehl) made to him (Deputy Eveland). Deputy Eveland stated he did not give Mehl any indic ation he would receive a lesser sentence if he were to implicate a co-defendant. The de puty had no doubt in his mind Mehl was being truthful. Deputy Eveland identified photog raphs he had taken at the scene as well as photographs of the chain saw and tool set he r ecovered from Mehl. The only individual Mehl implicated was Appellant. When asked if h e had the opportunity to interview Appellant, Deputy Eveland answered, “No, he declined an interview.” Id . at 139. {¶16} The body camera footage of Deputy Eveland’s interview with Mehl during the late evening hours of March 23, 2019, and the video of Depu ty Eveland’s interview with Mehl at the Sherriff’s Department on March 24, 2019, were played for the jury. For some reason which the deputy could not explain, only the audio portions of the recordings played. Mehl’s rendition of the events of the morning of March 23, 2019, are substantially similar in both interviews. Mehl told the deputy Appellant app roached him asking for help because he [Appellant] needed formula for his newborn daughters . Appellant’s wife had been laid off and Appellant himself had been unable to make any money.{¶17} Kenneth Vanoster, Appellant’s friend, Rebecca Gillman, Appellan t’s wife, and Kristy Chevalier, Appellant’s sister, testified on Appellan t’s behalf. Vanoster stated he saw Appellant at Chevalier’s house between 7:25 and 8:00 a.m . on March 23, 2019. Vanoster stopped by to tell Appellant he would not be at the bi rthday party for Appellant’s

son. {¶18} Gillman testified she, Appellant, and their children arrived at Chevalier’s house between 6:30 and 6:45 a.m. on March 23, 2019. Gillman ex plained March 23, was

their son’s 8 th birthday, and the family planned to go to the skating rink fol lowed by KFC and cake. Gillman stated they left Chevalier’s house at approx imately 9:30 a.m., and went McDonald’s for breakfast. Gillman recalled Vanoster stopp ed by around 7:45 a.m., to tell them he would not be at the birthday party. After brea kfast, Gillman, Appellant, and their children drove to Somerset, Ohio, to pick up Appellant’s niece. Chevalier and her family went to fill up her vehicle with gas. Gillman indicated she and Appellant have never had any problems paying their b ills, she was employed at the ti me of the break-in, and the family received assistance with formula and milk through WI C (Women, Infants, & Children program). {¶19} Chevalier testified Appellant and his family arrived at her hou se at 6:45 a.m. on March 23, 2019. Chevalier stated Vanoster arrived around 7:4 5 a.m., to tell Appellant he would not be able to attend the party. After Vanoster left, the group went to McDonald’s for breakfast. Chevalier, her fiancé, and her son s topped at a gas station then proceeded to a roller rink in Zanesville. After skating f or two or three hours, the group went to Kentucky Fried Chicken to eat. They picked up an ice cream cake at Dairy Queen in New Lexington, and returned to Chevalier’s house.{¶20} Appellant testified on his own behalf. When asked why the date March 23, 2019, was important to him, he responded it was the birthday of one of his children. His son, L.J., was turning 8, and they planned to go to the skating rink and then have KFC and ice cream cake. Appellant recalled his wife woke him up be tween 6:15 and 6:30 a.m. About 10 minutes later, Appellant, his wife, and six children l eft their residence and went to Appellant’s sister’s house. Appellant and his children had spent the evening of March 22, 2019, at his sister’s house. Appellant and his sister made plans to go out to breakfast the next morning. Appellant and his children left his sister’s house between 11:30 p.m. and midnight, and picked up his wife from work around 12:30 – 1 :00 a.m. Appellant and his family arrived home at 1:30 a.m. {¶21} Appellant stated he has known Matthew Mehl since Mehl was five or six years old, and “I never have liked him.” Id . at 187. Appellant described Mehl as shady. Appellant testified he hired Mehl to work on his vehicle. Acco rding to Appellant, he gave Mehl “75 bucks, he took my tool set, took my money, and he didn ’t come back,” adding, “He stole everything from me. He took our TVs.” Id . Appellant denied ever breaking into someone else’s home with Mehl. Appellant indicated, during his cross-examination, he filed a police report, but no charges were filed against Mehl. {¶22} Appellant was questioned on cross-examination about why and how his family was able to wake up at such an early hour on the morning of March 23, 2019, after being out so late the evening before. Appellant responded, “Yo , you never had plans? You never wanted to do anything with your family?” Id . at 191. On re-direct, Appellant stated the police never contacted him regarding the instant mat ter. Appellant added he would have talked to the police if he had been contacted.{¶23} After hearing the evidence and deliberating, the jury found App ellant guilty of burglary, but not guilty of theft. The trial court ordered a presentence investigation. On August 28, 2020, the trial court sentenced Appellant to an inde finite term of imprisonment of 3 to 4 1⁄2 years. The trial court ordered Appellant to pay re stitution in the amount of $2,590.00, to Greg Sherrick. The trial court memorialized Appe llant’s conviction and sentence via Return on Verdict and Termination Judgment Entry f iled August 31, 2020. Appellant filed a motion for new trial on September 1, 2020. F ollowing a hearing, the trial court denied Appellant’s motion via Judgment Entry filed Novemb er 9, 2020. {¶24} It is from his conviction and sentence Appellant appeals, raisi ng the following assignments of error:

I. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT

AGAINST THE APPELLANT WHEN THE JUDGMENT WAS NOT

SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE

II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

FAILED TO DECLARE A MISTRIAL OR ISSUE A CURATIVE

INSTRUCTION SUA SPONTE AFTER THE PROSECUTOR ELICITED

TESTIMONY REGARDING APPELLANT’S PRE-ARREST SILENCE

III. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL TO A DEGREE THAT APPELLANT DID NOT RECEIVE A FAIR

TRIALI {¶25} In his first assignment of error, Appellant challenges his conv iction as against the manifest weight of the evidence. {¶26} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “i n reviewing the entire record, weighs the evidence and all reasonable inferences, considers th e credibility of witnesses, and determines whether in resolving conflicts in evidence the j ury ‘clearly lost its way and created such a manifest miscarriage of justice that the convict ion must be reversed and

a new trial ordered.’ ” State v. Thompkins , 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). {¶27} Appellant was convicted of burglary in violation of R.C. 2911.1 2(A)(1):

(A) No person, by force, stealth, or deception, shall do any o f the following: (1) Trespass in an occupied structure or in a separately secur ed or separately occupied portion of an occupied structure, when anot her person other than an accomplice of the offender is present, with purpo se to commit in the structure or in the separately secured or separately occ upied portion of the structure any criminal offense[.]

{¶28} Appellant sets forth “various reasons” to support his position the evidence presented to the jury did not support his conviction. First, A ppellant contends the testimony of Matthew Mehl was untrustworthy, describing Mehl’s memory of the incidentas “quite poor.” Brief of Appellant at 6. Appellant notes Meh l was unable to recall the time of the break-in or how long they were in Sharrick’s home. Further, Mehl admitted

“he was under the influence at the time of what he believes was Xanax,” and testified “I

don’t know what I did.” Id . (Citation to Trial Transcript omitted). Appellant adds Mehl’ s testimony was “far-fetched,” referencing Mehl’s testimony he an d Appellant drove around all night, and he fell asleep during the burglary. Next, Appel lant submits his testimony and the testimony of his witnesses placed him at his sister’s h ouse at the time of the break-in. Finally, Appellant argues the video surveillance evi dence was “not as convincing as one might think,” explaining Sharrick initially b elieved the person seen in the surveillance video with Mehl was a man named Jeremy Sprankl e. {¶29} Upon review of the entire record, including reading the entire transcript and listening to Deputy Eveland’s interviews with Matthew Mehl, we find Appellant's conviction was not against the manifest weight of the evidence. Mehl’s tr ial testimony and the statements he made during interviews with Deputy Eveland were s ubstantially similar as detailed supra. Mehl testified Appellant approached him about robbing a house he (Appellant) had driven by multiple times while taking his girlf riend back and forth to work. Mehl agreed and the men executed Appellant’s plan to break into Sharrick’s residence on the morning of March 23, 3019. Mehl identified Appellant fr om a photograph taken from Sharrick’s video surveillance equipment. Deputy Eveland t estified each time he interviewed Mehl, his statements were Mehl’s statements were th e same or similar to his previous statements. Deputy Eveland further stated Mehl’s tria l testimony was similar to his out-of-court statements regarding the events.{¶30} The jury was free to accept or reject any or all of the evidenc e offered by the parties and assess the witnes ses’ credibility. Indeed, the jurors need not believe all of a witness’ testimony, but may accept only portions of it as tru e. State v. McGregor , 5th Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 294299. T he jury clearly believed the testimony of the state's witnesses over the testim ony of Appellant and his witnesses, and concluded Appellant was present at Sharrick’s ho me at the time of the break-in and participated in the offense. {¶31} Appellant’s first assignment of error is overruled.

II

{¶32} In his second assignment of error, Appellant contends the trial court committed plain error in failing to declare a mistrial or issue a curative instruction sua sponte after the prosecutor elicited testimony regarding Appell ant’s pre-arrest silence. {¶33} “Mistrials need to be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin , 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). The standard of review for evaluating a trial court's d ecision to grant or deny a

mistrial is abuse of discretion. State v. Maurer , 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). In reviewing a claim a mistrial should have been granted, the O hio Supreme Court has noted “[t]his court has instead adopted an approach which grant s great deference to the trial court's discretion in this area, in recognition of the fa ct that the trial judge is in the best position to determine whether the situation in his courtro om warrants the declaration

of a mistrial.” State v. Shaffer , 5th Dist. Richland No. 2003-CA-0108, 2004-Ohio-3717, 2004 WL 1563644, ¶ 18, quoting State v. Widner (1981), 68 Ohio St.2d 188, 429 N.E.2d 1065. See, also, Wade v. Hunter (1949), 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93 L.Ed.974. An abuse of discretion connotes more than an error of law or judgment. It implies the trial court ruled arbitrarily, unreasonably, or unconsciona bly. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). {¶34} The Fifth Amendment to the United States Constitution provides no person “shall be compelled in any criminal case to be a witness agains t himself. The Ohio Supreme Court has interpreted this clause as precluding the sta te from offering evidence of pre-arrest silence as substantive evidence of the criminal d efendant's guilt. See, State v. Leach, 102 Ohio St.3d 135, 2004–Ohio–2147, ¶ 30 (“[T]he use of [a def endant's] prearrest silence in the state's case-in-chief as substantive evidence of guilt subverts the policies behind the Fifth Amendment.”). In Leach, the state referred to the defendant's pre-arrest silence in its opening statement and purposefully el icited testimony to that effect from the investigating officers. Meanwhile, the other ev idence of the defendant's guilt was “not overwhelming.” Id. at ¶ 38. Consequently, the Supreme Court found the state offered the defendant's pre-arrest silence as substantive evidence of guilt and

reversed his conviction. Id. {¶35} We find Leach , supra, to be factually distinguishable; therefore, inapplicab le to the instant action. Here, Deputy Eveland was asked if he “h ad the opportunity to interview [Appellant] regarding this.” Tr. at 139. Deputy Eveland responded, “No, he

declined an interview.” Id . While Deputy Eveland’s response to the prosecutor’s question was a reference to Appellant’s pre-arrest silence, we find said response was harmless because Appellant, in contrast to the defendant in Leach , testified in his own defense, thereby, waiving his Fifth Amendment right to remain silent. A ccord, State v. Poteet , 7 th Dist. Columbiana No. 19-CO-0030, 2020-Ohio-4732; State v. Wall , 6 th Dist. Erie No. E-19-040, 2020-Ohio-5446. Additionally, unlike Leach , in which the prosecution presented testimony regarding the defendant’s silence as substantive evid ence of guilt, we find the state herein did not affirmatively seek to use Appellant’s deci sion not to be interviewed as such and note Appellant testified he would have talked to the p olice if he had been

contacted. {¶36} Based upon the foregoing, we find the trial court did not abuse its discretion in not declaring a mistrial. {¶37} Within this assignment of error, Appellant also argues, althoug h he did not object to Detective Eveland’s testimony, the trial court should have sua sponte given a curative instruction. By failing to object, Appellant has forfe ited all but plain error. For an error to be a “plain error” under Crim.R. 52(B), it must satisf y three prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the err or must be “plain,” meaning an “obvious” defect in the trial proceedings, and (3) the error must have affected “substantial rights,” meaning the error must have affected the outcome of the trial. ShineJohnson at 102,, quoting State v. Urbina , 10th Dist. No. 15AP-978, 72 N.E.3d 105, 2016- Ohio-7009, ¶ 43, citing State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). {¶38} Having found, supra, Appellant’s Fifth Amendment right against selfincrimination was not violated, we find no error, plain or othe rwise, in the trial court’s failure to sua sponte give a curative instruction. {¶39} Appellant’s second assignment of error is overruled.

III {¶40} In his third assignment of error, Appellant maintains trial cou nsel was ineffective for failing to either request a mistrial or a curat ive instruction following thetestimony regarding Appellant’s pre-arrest silence, and for fai ling to question Matthew Mehl regarding his agreement with the state to testify against Appellant. {¶41} A properly licensed attorney is presumed competent. State v. Hamblin , 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to p revail on a claim of ineffective assistance of counsel, Appellant must show counsel' s performance fell below an objective standard of reasonable representation and, but for counsel's error, the result of the proceedings would have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, Appellant must show counsel's condu ct so undermined the proper functioning of the adversarial process the proceedings c annot be relied upon as having produced a just result. Id. In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutin y of counsel's performance must be highly deferential. Bradley at 142, 538 N.E.2d 373. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists counsel's conduct fell within the wide range of reasonable professional assistance. Id. {¶42} In order to warrant a reversal, Appellant must additionally sho w he was prejudiced by counsel's ineffectiveness. “Prejudice from defect ive representation sufficient to justify reversal of a conviction exists only wher e the result of the trial was unreliable or the proceeding fundamentally unfair because of th e performance of trial

counsel.” State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965, citing Lockhart

v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180. The United States Supreme Court and the Ohio Supreme Court have held a reviewing court “need notdetermine whether counsel's performance was deficient before ex amining the prejudice suffered by the defendant as a result of the alleged deficienci es.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697. {¶43} Having concluded in Assignment of Error II, supra, Detective Ev eland’s testimony Appellant declined an interview with him did not viol ate Appellant’s Fifth Amendment right against self-incrimination, we find Appellant w as not prejudiced by trial counsel’s failure to move for a mistrial or request a curative instruction. {¶44} We now turn to Appellant’s assertion trial counsel was ineffect ive for failing to question Mehl relative to his agreement with the state to te stify against Appellant. We note Mehl had already testified on direct examination he had no t been “given any promises of a better deal” before giving Deputy Eveland his vol untary statement. Tr. at 105. Assuming, arguendo, trial counsel was ineffective for fai ling to conduct this line of questioning, we find Appellant cannot and did not establish, “b ut for counsel's error, the result of the proceedings would have been different.” Strickland , supra. {¶45} Appellant’s third assignment of error is overruled. {¶46} The judgment of the Perry County Court of Common Pleas is affir med.

By: Hoffman, J. Baldwin, P.J. and Gwin, J. concur