[Cite as State v. McKenzie, 2021-Ohio-536.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : 

 : Case No.: 19CA3892 

Plaintiff-Appellee, : 19CA3893 

 : 

v. : DECISION AND JUDGMENT 

: ENTRY 

WILLARD MCKENZIE, : 

 : RELEASED: 02/23/2021

 Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES: 

Karyn Justice, Portsmouth, Ohio, for Appellant. 

Shane A. Tieman, Scioto County Prosecuting Attorney, for Appellee. 

_____________________________________________________________ 

Wilkin, J. 

{¶1} This is an appeal from a Scioto County Court of Common Pleas 

judgment entry of conviction of Appellant, Willard McKenzie, for two counts of 

felonious assault in violation of R.C. 2903.11(A)(2) and R.C. 2903.11(D)(1)(a), 

both second-degree felonies; and two counts of inducing panic in violation of 

R.C. 2917.31(A)(2) and R.C. 2917.31(C)(4)(a), both fifth-degree felonies. 

Appellant asserts the following two assignments of error: (1) Appellant’s criminal 

convictions for felonious assault were against the manifest weight of the 

evidence, and (2) Appellant’s counsel rendered ineffective assistance of counsel. 

After our review of the record and the applicable law, we affirm the trial court’s 

judgment of conviction. 
Scioto App. Nos. 19CA3892 & 19CA3893 2

BACKGROUND 

{¶2} On May 18, 2017, the State charged Appellant with violating a 

protection order in case 17-CRB-0267 in violation of R.C. 2919.27(A)(2) and 

(B)(3) (“McKenzie I”). Appellant moved for a competency examination, which the 

trial court granted on October 31, 2017. On February 27, 2018, the trial court 

held a hearing in which the Appellant indicated that he would plead guilty to 

violating the protection order. The parties then stipulated that, pursuant to the 

competency report, Appellant was competent for purposes of understanding the 

pending charge and that he did not qualify for a not-guilty-by-reason-of-insanity 

(“NGRI”) defense. The trial court then proceeded to inform Appellant of the rights 

he was waiving and that the offense was a fifth-degree felony that could result in 

a maximum sentence of twelve months in prison and a $2,500 fine. Ultimately, 

the trial court accepted Appellant’s guilty plea and set sentencing for May 2, 

2018. 

{¶3} On April 30, 2018, the State filed a motion to revoke Appellant’s bond 

due to the fact he “was in a stand-off with law enforcement which involved a 

firearm,” which the trial court granted. Consequently, the State filed new criminal 

charges against Appellant alleging that, on April 27, 2018, he committed two 

counts of felonious assault by knowingly causing or attempting to cause physical 

harm to Carl Keller and his son B.K. (a minor) by means of a deadly weapon, and 

two counts of inducing panic by causing the evacuation of a public place or 

causing serious public inconvenience or alarm by threatening to commit an 

offense of violence that resulted in economic harm. (“McKenzie II”) On May 2, 
Scioto App. Nos. 19CA3892 & 19CA3893 3

2018, the Court continued the sentencing hearing in McKenzie I, and set a new 

bond amount of $500,000, based on the new charges. 

{¶4} On July 27, 2018, Appellant moved for a competency examination,

which the trial court granted, and a notice of intent to use a NGRI defense. On 

October 16, 2018, after reviewing the record and the competency report, the trial 

court found Appellant was not competent to stand trial, and ordered him placed 

with Summit Behavioral Healthcare in an attempt to restore his competency. 

{¶5} On May 31, 2019, the trial court held a hearing in which the parties 

stipulated that Appellant was restored to competency regarding the pending 

charges in McKenzie II based on a report prepared by Summit Behavior 

Healthcare. The trial court issued an entry finding that Appellant’s competency 

had been restored, and set a pretrial hearing for June 7, 2019. 

{¶6} On June 7, 2019, Appellant filed a motion for an evaluation of his 

sanity at the time of the alleged offenses, which the trial court granted. On July 

12, 2019, Psychologist, Dr. Erin Nichting, issued a report concluding that while 

Appellant did suffer from a “serious mental disease” at the time of the shooting, 

he nevertheless understood that his action of shooting the gun was wrong, so the 

Doctor opined that a NGRI defense was not supported. Nevertheless, on August 

12, 2019, Appellant filed a motion notifying the trial court that he would pursue 

both a ”not guilty defense as well as a [NGRI] defense.” 

{¶7} After a two-day trial in September 2019, the jury returned a verdict 

finding Appellant guilty on both counts of felonious assault and both counts of 

inducing panic. For purposes of sentencing, the trial court merged both counts of 
Scioto App. Nos. 19CA3892 & 19CA3893 4

inducing panic with the two counts of felonious assault, and sentenced Appellant 

to four years in prison on each assault count to be served consecutive to each 

other, and consecutive to a one-year prison sentence in McKenzie I for violating 

the civil protection order, for an aggregate sentence of nine years in prison. It is 

from this judgment that Appellant appeals, asserting two assignments of error. 

ASSIGNMENT OF ERROR I 

APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE 

{¶8} In his first assignment of error, Appellant alleges that his convictions 

for felonious assault are against the manifest weight of the evidence. More 

specifically, Appellant argues the offense of felonious assault requires the State 

to prove beyond a reasonable doubt that he knowingly caused or attempted to 

cause physical harm to Carl Keller and his son, B.K., on the day of the shooting. 

Appellant argues that knowingly requires a mental state that one ought to know 

one’s actions will “probably cause certain results.” He claims that the “record 

supports [his] testimony that he did not aim (the gun) at anyone and shot into an 

open field.” Therefore, he argues, because he did not knowingly attempt to 

cause harm to anyone, the jury lost its way, and its verdict is against the manifest 

weight of the evidence. 

{¶9} In response, the State argues that witnesses testified that Appellant 

initially pointed the gun at his head, but then pointed it sideways and fired several 

shots, which were fired in the general direction of Carl Keller and his son, B.K., to 

the extent that Keller testified that he heard the bullets “whistle” by him and his 

son, B.K. The State also alleges that another neighbor testified that prior to the 
Scioto App. Nos. 19CA3892 & 19CA3893 5

shooting “[Appellant] was threatening to kill everyone. He returned to the house 

and came back outside with a gun and was firing it towards my house and the 

neighbors.” Accordingly, the State argues that the jury did not lose its way in 

convicting Appellant of felonious assault. Consequently, it argues that this court 

should overrule Appellant’s first assignment of error. 

LAW 

{¶10} In determining whether a defendant’s conviction is against the 

manifest weight of the evidence, the reviewing court must examine “the entire 

record, weigh the evidence and all reasonable inferences, consider the credibility 

of the witnesses, and determine whether, in resolving conflicts in the evidence, 

the trier of fact clearly lost its way and created such a manifest miscarriage of 

justice that the conviction must be reversed and a new trial granted.” State v. 

Anderson, 4th Dist. Washington No. 03CA3, 2004-Ohio-1033, ¶ 32, citing State 

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “In reviewing the 

evidence, we must be mindful that the jury, as the original trier of fact, was in the 

best position to judge the credibility of witnesses and the weight to be given to 

the evidence.” Id., citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 

(1967), paragraph one of the syllabus. This is because “[t]he fact finder ‘is best 

able to view the witnesses and observe their demeanor, gestures and voice 

inflections, and use these observations in weighing the credibility of the proffered 

testimony.’ ” State v. Picklesimer, 4th Dist. Pickaway No. 14CA17, 2015-Ohio1965, ¶9, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 

N.E.2d 1273 (1984). As a result, even when “conflicting evidence is presented at 
Scioto App. Nos. 19CA3892 & 19CA3893 6

trial, a conviction is not against the manifest weight of the evidence simply 

because the jury believed the testimony presented by the state.” State v. Harper, 

4th Dist. Lawrence No. 14CA19, 2015-Ohio-671, ¶ 12, citing State v. Tyson, 4th 

Dist. Ross No. 12CA3343, 2013-Ohio-3540, ¶ 21. “The jury can simply reject the 

defendant's defense and find the evidence in the state's case-in-chief more 

persuasive.” Id. Accordingly, “[a] reviewing court should not disturb the factfinder's resolution of conflicting evidence unless the fact-finder clearly lost its 

way.” State v. Newman, 4th Dist. Scioto No. 14CA3658, 2015-Ohio-4283, 45 

N.E.3d 624, ¶ 56, citing State v. Davis, 4th Dist. Washington No. 09CA28, 2010-

Ohio-555, 2010 WL 596976, ¶ 16-17. 

{¶11} Appellant was convicted of felonious assault under R.C. 

2903.11(A)(2), which provides “No person shall knowingly * * * [c]ause or 

attempt to cause physical harm to another * * * by means of a deadly weapon.” 

(Emphasis added.) 

{¶12} R.C. 2901.22(B) provides: 

A person acts knowingly, regardless of purpose, when the 

person is aware that the person's conduct will probably cause a

certain result or will probably be of a certain nature. A person 

has knowledge of circumstances when the person is aware that 

such circumstances probably exist. When knowledge of the 

existence of a particular fact is an element of an offense, such 

knowledge is established if a person subjectively believes that

there is a high probability of its existence and fails to make 

inquiry or acts with a conscious purpose to avoid learning the 

fact. 

{¶13} “[T]o commit an act ‘knowingly’ requires only that the criminal 

defendant be aware ‘that [the] result is practically certain to follow from his 

conduct, whatever his desire may be as to that result.’ ” State v. Berecz, 4th Dist. 
Scioto App. Nos. 19CA3892 & 19CA3893 7

Washington No. 08CA48, 2010-Ohio-285, ¶ 58, quoting United States v. Bailey, 

444 U.S. 394, 404, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). “The test for whether 

a defendant acted knowingly is a subjective one, but it is decided on objective 

criteria.” State v. McDaniel, 2nd Dist. Montgomery No. 16221, 1998 WL 214606, 

*7 (May 1, 1998), citing State v. Elliott, 104 Ohio App.3d 812, 821, 663 N.E.2d 

412 (10th Dist. 1995) (A “[d]efendant's subjective state of mind may be 

determined from reasonable inferences arising from the evidence.”) 

{¶14} “ [A] firearm is an inherently dangerous instrumentality, use of which 

is reasonably likely to produce serious injury or death.” State v. Widner, 69 Ohio 

St.2d 267, 270, 431 N.E.2d 1025 (1982), citing State v. Lockett, 49 Ohio St.2d 

48, 358 N.E.2d 1062 (1976), paragraphs three and four of the syllabus (reversed 

on other grounds, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973). “Thus, courts 

have often affirmed a finding that the defendant acted knowingly when the 

defendant shot a gun in a place where there is a real and substantial risk of injury 

to persons.” Berecz, 4th Dist. Washington No. 08CA48, 2010-Ohio-285, ¶ 58. 

Accord State v. Dixson, 1st Dist. Hamilton No. C-030227, 2004-Ohio-2575, ¶ 6, 

28 (“Firing a gun at a car is evidence of knowingly attempting to harm the car 

passengers for purposes of felonious assault.). 

ANALYSIS 

{¶15} There were several witnesses to the shooting, including Appellant’s 

Mother, Eunice McKenzie; Appellant’s brother-in-law and sister, Nelson Slusher 

and Jill Slusher; Appellant’s nephew’s wife, Leigha Plummer; and neighbors, 

Carl Keller and his son, B.K. Statements given by several of these witnesses to 
Scioto App. Nos. 19CA3892 & 19CA3893 8

police shortly after the shooting indicated that prior to the shooting Appellant was 

threatening people. Nelson Slusher told police that “[Appellant] was on the back 

porch going crazy. Wanting to hurt somebody. After a few minutes he goes in 

the house and comes out shooting and holding a gun to his head, going to shoot 

his self.” Leigha Plummer told police “[Appellant] was threatening to kill 

everyone. He returned to the house and came back outside with a gun and was 

firing towards my house and the neighbors.” Even, Appellant’s mother, Eunice 

McKenzie, admitted that Appellant told her “I could kill you now.” 

{¶16} At trial, Appellant testified that he struggled with mental issues, 

including depression, and on the day of the shooting, after arguing with his 

mother, he decided that he “had enough” and “was going to shoot myself.” 

Appellant testified that he retrieved the gun from the house, initially held it to his 

head, but then pointed the gun away from his head and “I shot all the bullets out.” 

He testified that he did not hold it “sideways,” but fired it into an “open area” and 

did not intend to hurt anyone. Appellant’s sister and brother-in-law, Jill Slusher 

and Nelson Slusher, also testified that Appellant fired the gun upward and that he 

was not shooting at anyone. 

{¶17} However, Carl Keller testified that, although Appellant did not aim 

the gun at anyone in particular, after initially pointing the gun at his head, 

Appellant pointed the gun “sideways” and fired in the general direction of he and 

his son, B.K., to the extent that Carl could hear the “whistle of [the bullets] going 

by.” Leigha Plummer also testified that after pointing the gun at his head, 

Appellant “turned [the gun] sideways and started firing it.” (Emphasis added.) 
Scioto App. Nos. 19CA3892 & 19CA3893 9

{¶18} Thus, there was testimony presented to the jury that Appellant 

verbally threatened persons prior to shooting the gun, as well as testimony that 

Appellant pointed the gun sideways in the general direction of Carl Keller and 

B.K. It was within the prerogative of the jury to believe this evidence, instead of 

the testimony indicating that Appellant fired the gun into the air. Harper, 4th Dist. 

Lawrence No. 14CA19, 2015-Ohio-671, ¶ 12. And it was reasonable for the jury 

to infer from this evidence that Appellant knowingly attempted to harm Carl Keller 

and B.K. by pointing the gun sideways. Berecz, 4th Dist. Washington No. 

08CA48, 2010-Ohio-285, ¶ 58. Therefore, because we find that the jury did not 

clearly lose its way in finding Appellant guilty of felonious assault so as to create 

a manifest miscarriage of justice that Appellant’s convictions must be reversed 

and a new trial granted, we overrule Appellant’s first assignment of error. 

ASSIGNMENT OF ERROR II 

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL 

{¶19} Appellant next argues that his trial counsel was ineffective because 

he failed to object to the admission of Dr. Nichting’s report, which addressed 

Appellant’s sanity at the time of the shooting, into evidence without any limiting 

instruction; thus, opening the door for the State to ask Appellant incriminating 

questions on cross examination based on the report. Appellant cites R.C. 

2945.371(J) in support of this argument. Appellant also argues that his trial 

counsel effectively abandoned Appellant’s “[NGRI] defense by failing to subject 

Dr. Nichting or her report to rigorous cross examination.” 
Scioto App. Nos. 19CA3892 & 19CA3893 10

{¶20} The State argues that Appellant’s strategy was to allow the report 

into evidence, because, while Dr. Nichting concluded that Appellant understood 

the wrongfulness of his actions, she also found that Appellant had a “serious 

mental disease” at the time of the shooting. Consequently, contrary to 

Appellant’s assertion, the State argues that in addition to arguing that the State 

had failed to prove its case, Appellant’s trial counsel also argued that Appellant 

was NGRI based on Appellant’s serious mental disease at the time of the 

shooting. The State argues that given the facts of the case and Appellant’s 

defense strategy at trial, admission of the report was an objectively reasonable 

action by Appellant’s counsel. 

LAW 

1. Ineffective Assistance of Counsel 

 {¶21} “To establish a claim of ineffective assistance of counsel, a 

defendant must show that (1) counsel's performance was deficient, and (2) the 

deficient performance prejudiced the defense so as to deprive the defendant of a 

fair trial.” State v. McCoy, 4th Dist. Pickaway No. 19CA1, 2020-Ohio-1083, ¶ 28, 

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

674 (1984). “ ‘Failure to establish either element is fatal to the claim.’ ” State v. 

Book, 4th Dist. Ross No. 09CA3107, 2009-Ohio-6168, ¶ 11, quoting In re 

B.C.S., Washington App. No. 07CA60, 2008-Ohio-5771, at ¶ 16, citing Strickland 

at 687. “To show prejudice, the defendant must show a reasonable probability 

that, but for counsel's errors, the result of the proceeding would have been 

different.” State v. Jarrell, 4th Dist. Gallia No. 15CA8, 2017-Ohio-520, 85 N.E.3d 
Scioto App. Nos. 19CA3892 & 19CA3893 11

175, ¶ 48, citing State v. Conway 109 Ohio St.3d 412, 2006-Ohio-2815, 848 

N.E.2d 810, ¶ 95. “[S]peculation is insufficient to establish the prejudice 

component of an ineffective assistance of counsel claim.” State v. Blackburn, 4th 

Dist. Jackson No. 18CA32020-Ohio-1084, ¶ 37, citing State v. Tabor, 4th Dist. 

Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34; State v. Jenkins, 4th Dist. Ross No. 

13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 

13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 

2012-Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-

Ohio-6191, ¶ 68. Accord State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 

971 N.E.2d 865, ¶ 86 (stating that an argument that is purely speculative cannot 

serve as the basis for an ineffectiveness claim). 

{¶22} “In Ohio, a properly licensed attorney is presumed competent.” 

State v. Shifflet, 4th Dist. Athens No. 13CA23, 2015-Ohio-4250, 44 N.E.3d 966, ¶

37, citing State v. Davis,4th Dist. Scioto Nos. 13CA3589, 13CA3593, 2014-Ohio5371; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 

62; State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 25. 

Consequently, “ ‘the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial strategy.’ ” 

State v. Vance, 4th Dist. Jackson No. 18CA2, 2018-Ohio-5344, ¶ 10, quoting 

Strickland at 689. “Debatable strategic and tactical decisions may not form the 

basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks 

as if a better strategy had been available.” State v. Detienne, 4th Dist. Athens 

No. 16CA13, 2017-Ohio-9105, ¶ 35, citing State v. Cook, 65 Ohio St.3d 516, 
Scioto App. Nos. 19CA3892 & 19CA3893 12

524, 605 N.E.2d 70 (1992). “Hindsight is not permitted to distort the assessment 

of what was reasonable in light of counsel's perspective at the time, and 

a debatable decision concerning trial strategy cannot form the basis of a finding 

of ineffective assistance of counsel.” Id. Finally,“ ‘[t]he scope of crossexamination falls within the ambit of trial strategy, and debatable trial tactics do 

not establish ineffective assistance of counsel.’ ” State v. Hammond, 4th Dist. 

Ross No. 18CA3662, 2019-Ohio-4253, ¶ 42, quoting Conway 109 Ohio St.3d 

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. 

ANALYSIS 

{¶23} Initially, we note that although Appellant in part alleges that 

permitting the State to cross examine Appellant with regard to Dr. Nichting’s 

report resulted in incriminating answers, he fails to identify any incriminating 

answers in the trial transcript. “[I]t is not the reviewing court’s obligation to 

search the record for evidence to support an appellant's argument as to any 

alleged error[.]” State v. Ozeta, 4th Dist. Adams No. 02CA746, 2004-Ohio-329, ¶ 

18, citing State v. McGuire (Dec. 14, 1994), 9th Dist. Nos. 16423 and 16431. 

Nevertheless, a review of the trial transcript appears to reveal that, at most, the 

State asked Appellant two questions on cross examination pertaining to Dr. 

Nichting’s report: (1) was Appellant drinking prior to shooting the gun, and (2) did 

Appellant recall telling Dr. Nichting that if he (Appellant) acted suicidal maybe 

they would take you seriously. Thus, the question is whether Appellant’s trial 

counsel was ineffective for not objecting to the admission of Appellant’s sanity 
Scioto App. Nos. 19CA3892 & 19CA3893 13

report, or not objecting to these questions posed by the State on cross 

examination. 

a. Counsel’s Failure to Object to the Admission of the Sanity Report 

 {¶24} It was Appellant who moved the trial court for a sanity evaluation 

hoping to support an NGRI defense. Unfortunately for Appellant, Dr. Nichting 

concluded that her examination of Appellant did not support an NGRI defense. 

However, Dr. Nichting did find that Appellant was suffering from a “severe mental 

disease” at the time of the shooting, which Appellant’s trial counsel confirmed on 

cross examination. Contrary to Appellant’s assertion, we find that his trial 

counsel did not abandon Appellant’s NGRI defense. In his closing, Appellant’s 

trial counsel acknowledged the doctor’s unfavorable opinion regarding 

Appellant’s NGRI defense, but noted the doctor’s finding that Appellant suffered 

a “severe mental disease,” and appeared to urge the jury to disavow the doctor’s 

opinion that a NGRI defense was unwarranted. And, the trial judge instructed the 

jury on the NGRI defense. Therefore, we find that Appellant has not proven that 

his trial counsel’s failure to object to the admission of Appellant’s report was 

other than a strategy to assert the additional defense of NGRI. Vance, 4th Dist. 

Jackson No. 18CA2, 2018-Ohio-5344, ¶ 10. 

b. Counsel’s Failure to Object to State’s Cross Examination 

{¶25} Appellant argues that his trial counsel should have objected to the 

State’s cross examination of him based on his sanity report pursuant to R.C. 

2945.371(J). 

{¶26} R.C. 2945.371(J) states: 
Scioto App. Nos. 19CA3892 & 19CA3893 14

No statement that a defendant makes in an evaluation or 

hearing under divisions (A) to (H) of this section relating to the 

defendant's competence to stand trial or to the defendant's 

mental condition at the time of the offense charged shall be 

used against the defendant on the issue of guilt in any 

criminal action or proceeding, but, in a criminal action or 

proceeding, the prosecutor or defense counsel may call as a 

witness any person who evaluated the defendant or prepared 

a report pursuant to a referral under this section. Neither the

appointment nor the testimony of an examiner appointed 

under this section precludes the prosecutor or defense 

counsel from calling other witnesses or presenting other 

evidence on competency or insanity issues. (Emphasis 

added.) 

{¶27} The Ohio Supreme Court found that “[t]he plain language of the 

statute strictly prohibits the use of a defendant’s statements on the issue of 

guilt.” (Emphasis Added.) State v. Harris, 142 Ohio St. 3d 211, 2015-Ohio-16628 

N.E.3d 1256, ¶ 28. The Court went on to state: “Accordingly, R.C. 

2945.371(J) also prohibits the admission of evidence from the defendant’s 

psychiatric evaluation if the defendant neither initiates the evaluation nor 

attempts to introduce any psychiatric evidence.” Id. The Court continued: “these 

restrictions” do not prohibit considering defendant’s statements addressing the 

issue of the defendant’s mental state or sanity. Id. 

{¶28} Unlike in Harris, Appellant initiated his evaluation for purposes of 

supporting an NGRI defense, and asserted an NGRI defense at trial. Further, 

the State’s questions on cross (i.e. whether Appellant had been drinking prior to 

shooting the gun and whether Appellant could recall telling Dr. Nichting that if he 

(Appellant) acted suicidal maybe they would take you seriously) addressed 

Appellant’s mental state or sanity, which is permitted under Harris’s reading of 
Scioto App. Nos. 19CA3892 & 19CA3893 15

R.C. 2945.371(J). Therefore, we find that trial counsel’s failure to object to these 

questions on cross examination was not deficient representation. 

c. Counsel’s Cross Examination of Dr. Nichting 

{¶29} Trial counsel elected to rely on Dr. Nichting’s finding that Appellant 

suffered a “serious mental disease” at the time of the shooting to support his 

argument that Appellant was NGRI. However, as we previously discussed, Dr. 

Nichting also opined that his examination of Appellant did not support a NGRI 

defense. Under these circumstances, we find that a less aggressive cross 

examination of Dr. Nichting is within the ambit of trial strategy so as not to draw 

further attention of Dr. Nichting’s opinions that were unfavorable to Appellant’s 

defense. See generally Hammond, 4th Dist. 2019-Ohio-4253, ¶ 42. 

{¶30} In sum, we find that trial counsel’s representation of Appellant was 

not deficient because the Appellant has failed to prove that his trial counsel’s 

actions were other than strategic decisions that were consistent with the law, and 

even assuming arguendo counsel’s representation was deficient, we find that 

Appellant has failed to “show a reasonable probability that, but for counsel's 

errors, the result of the proceeding would have been different.” Jarrell, 4th Dist. 

Gallia No. 15CA8, 2017-Ohio-520, 85 N.E.3d 175, ¶ 48. Therefore, we overrule 

Appellant’s second assignment of error. 
Scioto App. Nos. 19CA3892 & 19CA3893 16

CONCLUSION 

{¶31} Accordingly, having overruled both of Appellant’s assignments of 

error, we affirm the trial court’s judgment entry of conviction. 

 JUDGMENT AFFIRMED.
Scioto App. Nos. 19CA3892 & 19CA3893 17

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed 

to Appellant. 

 The Court finds there were reasonable grounds for this appeal.

 It is ordered that a special mandate issue out of this Court directing the 

Scioto County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL 

HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS 

COURT, it is temporarily continued for a period not to exceed sixty days upon the 

bail previously posted. The purpose of a continued stay is to allow Appellant to 

file with the Supreme Court of Ohio an application for a stay during the pendency 

of proceedings in that court. If a stay is continued by this entry, it will terminate at 

the earlier of the expiration of the sixty-day period, or the failure of the Appellant 

to file a notice of appeal with the Supreme Court of Ohio in the forty-five-day 

appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal 

prior to expiration of sixty days, the stay will terminate as of the date of such 

dismissal. 

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

27 of the Rules of Appellate Procedure. 

Hess, J. and Abele, J.: Concur in Judgment and Opinion. 

For the Court, 

 BY: ______________________________ 

 Kristy S. Wilkin Judge

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.