[Cite as State v. Houston, 2010-Ohio-6070.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SHELBY COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 17-10-06 

 v. 

ELLIS HOUSTON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Shelby County Common Pleas Court 

Trial Court No. 09CR000323 

Judgment Affirmed 

Date of Decision: December 13, 2010 

 

APPEARANCES: 

Jonathan M. Richard for Appellant 

Jeffrey J. Beigel for Appellee 
Case No. 17-10-06 

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PRESTON, J. 

{¶1} Defendant-appellant, Ellis Houston (hereinafter “Houston”), appeals 

the Shelby County Court of Common Pleas’ judgment of sentence. For the 

reasons that follow, we affirm. 

{¶2} On October 22, 2009, Houston was indicted by the Shelby County 

Grand Jury on three counts of breaking and entering in violation of R.C. 

2911.13(A), each a felony of the third degree. These counts alleged that on three 

different dates, Houston broke into a store, once at the Lassus Handy Dandy and 

twice at Foodtown, both located on Wapakoneta Road in Sidney, Ohio, and stole 

cigarettes. Houston entered pleas of not guilty, and on January 5, 2010, the matter 

proceeded to a jury trial. 

{¶3} The morning of trial, just before the venire was brought into the 

courtroom, counsel for Houston informed the court that he had attempted to speak 

with Houston that morning but that Houston would not answer his questions. 

Houston asked that his attorney be removed from the case and he be allowed to 

represent himself. The trial court discussed this request with Houston, permitted 

the prosecutor to speak on the issue, and then denied Houston’s request because of 

its untimeliness. 

{¶4} The jury trial commenced and the State presented the testimony of 

six witnesses. The State also introduced one exhibit, a DVD that contained video 
Case No. 17-10-06 

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surveillance from each of the three incidents. Between the testimony of two of the 

State’s witnesses, defense counsel informed the court that the alibi witness for 

Houston, a witness for whom he had previously provided a notice of alibi, was not 

present. He further explained that he had arranged for her to be there for trial but 

that Houston had contacted her the previous night and “asked her not to be here in 

part because he believed that he was going to be able to represent himself today.” 

(Jan. 5, 2010, Tr. at 91-92.) Thus, Attorney Clinard told the court that he did not 

have an alibi witness to present and was withdrawing the notice of alibi. (id.) At 

the conclusion of the State’s case, the defense made a motion for acquittal, which 

was denied. The defense presented no evidence. 

{¶5} After closing arguments, the jury was given instructions and 

returned verdicts of guilty on all three counts. The court ordered a pre-sentence 

investigation, and a sentencing hearing was conducted on February 8, 2010. 

Houston was sentenced to eleven months in prison on each count to be served 

consecutively to one another for an aggregate term of thirty-three months. 

{¶6} Houston now appeals, raising three assignments of error for our 

review. 

ASSIGNMENT OF ERROR NO. I: 

THE TRIAL COURT ABUSED ITS DISCRETION IN NOT 

PERMITTING THE DEFENDANT/APPELLANT TO 

REPRESENT HIMSELF AND DISMISS HIS COURT 

APPOINTED ATTORNEY. 
Case No. 17-10-06 

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{¶7} The Sixth Amendment to the United States Constitution provides 

that an accused shall have the right “to have the Assistance of Counsel for his 

defense.” Alternatively, a criminal defendant has the “right to conduct his own 

defense.” McKaskle v. Wiggins (1984), 465 U.S. 168, 170, 104 S.Ct. 944, citing 

Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525. Thus, although a 

defendant has a right to counsel, the defendant may “waive that right when the 

waiver is voluntary, knowing, and intelligent.” State v. Petaway, 3rd Dist. No. 8-

05-11, 2006-Ohio-2941, ¶ 8, citing State v. Gibson (1976), 45 Ohio St.2d 366, 345 

N.E.2d 399, paragraph one of the syllabus, citing Faretta, supra. “If a trial court 

denies the right to self-representation, when properly invoked, the denial is per se 

reversible error.” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 

N.E.2d 81, ¶ 32, citing State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 

N.E.2d 456, citing McKaskle, 465 U.S. at 177, 104 S.Ct. 944. 

{¶8} While a defendant has the right to represent himself, that right is not 

absolute. Notably, the Ohio Supreme Court has held that an untimely invocation 

of the right of self-representation may be disallowed by a trial court. State v. 

Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 50. In Vrabel, the 

Court stated, 

In the recent case of State v. Cassano, 96 Ohio St.3d 94, 2002-

Ohio-3751, 772 N.E.2d 81, ¶ 37, we reasoned that the 

defendant’s request to represent himself was untimely, since it 
Case No. 17-10-06 

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was made only three days before the trial was to begin. Other 

courts, as noted in Cassano, have also found that invocation of 

the right of self-representation can be disallowed where such a 

request is untimely. See, e.g., United States v. Mackovich

(C.A.10, 2000), 209 F.3d 1227, 1237 (requests made within ten 

days before trial “were merely a tactic for delay”); United States 

v. George (C.A.9, 1995), 56 F.3d 1078, 1084 (request made on 

eve of trial untimely); Parton v. Wyrick (C.A.8, 1983), 704 F.2d 

415, 417 (request made morning of trial untimely); United States 

v. Frazier-El (C.A.4, 2000), 204 F.3d 553, 560 (the “right does 

not exist * * * to be used as a tactic for delay”). 

Vrabel, 2003-Ohio-3193, at ¶ 50. 

{¶9} Here, Houston did not request to represent himself until the day of 

trial. In fact, the trial court specifically found that the prospective jury members 

were “in the jury room ready to proceed[.]” (Jan. 5, 2010, Tr. at 6.) Therefore, the 

trial court concluded that Houston’s invocation of his right of self-representation 

was untimely. We agree. 

{¶10} Not only did Houston wait until the day of trial, with the venire 

present and waiting to proceed, to invoke his right to self-representation, his 

reasons for the request to represent himself did not arise that day. To the contrary, 

Houston stated that December 17, 2009, was the first time his attorney came to see 

him at the jail, that at his first pre-trial he had problems with his attorney, and that 

he wanted to get more witnesses. Although Houston did not directly ask for a 

continuance, his stated reason, that he wanted to represent himself because he 
Case No. 17-10-06 

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wanted “to get more witnesses,” certainly implied that he would need a 

continuance to do so, thereby delaying the trial of this matter. 

{¶11} We find that Houston had sufficient time to properly invoke his right 

to self-representation and to then prepare for trial, but he chose not to do so until 

the day of trial. Thus, the trial court properly concluded that his request was 

untimely and did not err in overruling his request to represent himself. The first 

assignment of error is overruled.

ASSIGNMENT OF ERROR NO. II 

THE DEFENDANT/APPELLANT’S CONVICTIONS ARE 

NOT SUPPORTED BY SUFFICIENT EVIDIENCE [sic] IN 

VIOLATION OF HIS DUE PROCESS RIGHTS, OR IN THE 

ALTERNATIVE ARE AGAINST THE MANIFEST WEIGHT 

OF THE EVIDENCE. 

{¶12} In his second assignment of error, Houston contends that his 

convictions were not supported by sufficient evidence or, alternatively, were 

against the manifest weight of the evidence. Specifically, Houston does not 

maintain that the State failed to prove that three offenses of breaking and entering 

occurred in Shelby County, Ohio, on the dates alleged. Rather, he asserts that the 

State failed to prove that he was the actual perpetrator of these offenses. In 

support of this assertion, Houston argues that the two witnesses who identified 

him on the surveillance video as the perpetrator were both convicted felons and 

that neither was present at the crime scenes. 
Case No. 17-10-06 

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{¶13} The Ohio Supreme Court has set forth the sufficiency of the 

evidence test as follows: 

[A]n appellate court’s function when reviewing the sufficiency 

of the evidence to support a criminal conviction is to examine 

the evidence admitted at trial and determine whether such 

evidence, if believed, would convince the average mind of the 

defendant’s guilt beyond a reasonable doubt. The relevant 

inquiry is whether, after viewing the evidence in a light most 

favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime proven beyond a 

reasonable doubt. 

State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, superseded by 

state constitutional amendment on other grounds as stated in State v. Smith, 80 

Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. 

{¶14} Alternatively, an appellate court’s function when reviewing the 

weight of the evidence is to determine whether the greater amount of credible 

evidence supports the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-

Ohio-52, 678 N.E.2d 541. In reviewing whether the trial court’s judgment was 

against the weight of the evidence, the appellate court sits as a “thirteenth juror” 

and examines the conflicting testimony. Id. In doing so, this Court must review 

the entire record, weigh the evidence and all of the reasonable inferences, consider 

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

evidence, the factfinder “clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and a new trial 
Case No. 17-10-06 

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ordered.” State v. Andrews, 3rd Dist. No. 1-05-70, 2006-Ohio-3764, ¶ 30, citing 

State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717; Thompkins, 78 

Ohio St.3d at 387, 678 N.E.2d 541. 

{¶15} In this case, the State presented the following evidence. Meredith 

Groves testified that she is the manager of the Handy Dandy on Wapakoneta 

Avenue in Sidney, Ohio, and has worked there for three years. (Jan. 5, 2010, Tr. 

at 50.) Handy Dandy is a convenience store that includes a Subway restaurant 

carry-out but does not include a dine-in area. (id. at 52.) She further testified that 

in the early morning hours of August 21, 2009, someone threw a “huge rock” 

through the store’s glass door and stole numerous “cartons of cigarettes and Black 

& Mild cigars.” (id. at 50-52.) During her testimony, Groves also identified 

State’s Exhibit 1 as a DVD that included a true and accurate copy of the video 

surveillance of the break-in at the Handy Dandy that she had given to the detective 

assigned to investigate the case.1

 (id. at 51.) This video shows an object being 

thrown through the lower portion of the glass door, shattering the glass, and two 

men entering the store through the opening created when the glass was shattered. 

One man has no covering on his face, and the other has his face partially covered 

with a white, scarf-like object. The two are directly in front of the camera during 

 

1

 State’s Exhibit 1 is a single DVD that contains the relevant portions of the video surveillance footage 

from each of the three break-ins. 
Case No. 17-10-06 

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the time they are in the store and the video shows them removing a number of 

items from the store. 

{¶16} Keith Curtis, the manager of the Foodtown grocery store on 

Wapakoneta Avenue in Sidney, Ohio, also testified. (Jan. 5, 2010, Tr. at 57.) 

Curtis testified that in the early morning hours of August 24, 2009, someone broke 

the glass in the lower portion of the front door to the store by throwing a concrete 

block through it. (id. at 57-58, 61.) The intruder then entered the store and stole 

approximately $2,000.00 worth of cigarettes. (id. at 57-58.) Although the store 

was equipped with an alarm system, the alarm failed to activate on that occasion. 

(id. at 61.) Curtis also testified that the store was broken into again in the early 

morning hours of September 25, 2009. (id. at 58, 60.) Once again, the glass in the 

lower portion of the front door was broken to gain entry. (id. at 60.) However, 

this time a concrete flower pot was used to break the glass. (id. at 61.) Although 

the alarm was activated on this occasion, the intruder managed to steal 

approximately $1,000.00 worth of cigarettes and flee the scene. (id. at 60-61.) 

{¶17} During his testimony, Curtis also identified State’s Exhibit 1 as a 

DVD that contained true and accurate copies of the video surveillance taken at 

Foodtown during the two break-ins that he had given to the detective assigned to 

investigate the cases. (id. at 58-59.) Unlike the video footage from Handy Dandy, 

which was a streaming video, the Foodtown video surveillance was time lapsed. 
Case No. 17-10-06 

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This time lapse system operates by the camera taking still shots of whatever is in 

its sight approximately every six seconds. (id. at 62-63.) In addition, Foodtown 

had a number of time-lapse cameras in different locations of the store. These 

videos showed on both occasions the lower portion of the glass door being 

shattered, a man entering through the door, and that person taking items from the 

store. On the first video, the man is wearing the same white, scarf-like object to 

partially cover his face as one of the men in the Handy Dandy video is wearing. 

On the second video, the intruder is wearing a hooded sweatshirt but nothing 

directly over his face. The outside shot in this surveillance video also shows that it 

is raining. 

{¶18} Officer Rodney Robbins of the Sidney Police Department testified 

that he was working third shift on August 21, 2009. (Jan. 5, 2010, Tr. at 65-66.) 

As he was patrolling in his police cruiser at approximately 2:00 a.m., he drove past 

the Handy Dandy store and noticed that the glass in the front door was broken. 

(id. at 66.) He and other officers secured the store and found multiple packs of 

Black & Mild cigars lying just outside the door. (id. at 67.) Officer Robbins also 

had his canine partner, Sid, with him, and he and Sid attempted to track the 

suspects. (id. at 68-69.) Although they did not locate any suspects in the fifteen to 

twenty minutes they spent tracking, they did recover more packages of Black & 

Mild cigars behind the store along the tree line. (id. at 69.) 
Case No. 17-10-06 

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{¶19} Dustin Hawkins also testified. Hawkins testified that he was 

currently in jail and that he had entered into a plea agreement with the State, 

whereby he plead guilty to one count of breaking and entering, a felony of the fifth 

degree, and agreed to testify in Houston’s case, and in exchange the State 

dismissed two other counts of breaking and entering, both felonies of the fifth 

degree, against Hawkins. (Jan. 5, 2010, Tr. at 73.) Hawkins also acknowledged 

that he had prior felony convictions for robbery and burglary. (id. at 72.) 

{¶20} Hawkins testified that he met Houston and Houston’s brother, 

Anthony, in early August of 2009, or perhaps earlier through the Houstons’ 

cousin, TJ Henderson. (id. at 83.) According to Hawkins, Houston told Hawkins 

that he and Anthony were the ones who broke into the Handy Dandy store and 

stole cigarettes. (id. at 73.) Hawkins also testified that he picked up Houston and 

Anthony at their home on September 25, 2009, and drove to Kossuth Street by the 

Sidney Foodtown and parked. (id. at 77-78.) Houston and his brother exited the 

vehicle while Hawkins waited in the car. Hawkins then heard a big bang and, 

shortly thereafter, the brothers ran back to the vehicle. (id. at 79.) When they 

returned, Houston was carrying a large bag that “looked like it had a bunch of 

cartons of cigarettes in it.” (id. at 81.) In exchange for driving them, Hawkins 

testified that he was given cocaine. (id.) 
Case No. 17-10-06 

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{¶21} During Hawkins’ direct examination, the prosecutor played the 

video footage from all three break-ins. (id. at 74-77, 79-80.) Hawkins identified 

both Houston and Anthony as the people depicted in the Handy Dandy footage, 

specifically indicating that Houston was the person with the white, scarf-like 

object partially covering his face. (id. at 74.) He further identified Houston as the 

person depicted in three different shots from the video footage of the first 

Foodtown break-in. (id. at 75-77.) Hawkins also identified Houston in the video 

footage of the second Foodtown break-in. More specifically, he noted that in this 

footage, Houston was wearing a “hoodie with, like, sweatpants[,]” and that these 

were the clothes Houston was wearing that night when Hawkins picked him up. 

(id. at 79-80.) Hawkins was shown another shot from the video of the second 

Foodtown break-in and testified that the person in that shot appeared to be 

Houston as well. (id. at 80.) 

{¶22} On cross-examination, Hawkins testified that he was convicted of 

burglary and robbery in Kentucky in either 2003 or 2004, and that he had served 

six years in prison for these offenses. (id. at 85-86.) He also testified that in order 

to have two of his charges dismissed, he had to “give up Ellis and his brother,” had 

to testify against Houston and Anthony, and that if he did not testify against 

Houston, the “deal may * * * disappear[.]” (id. at 86-87.) When asked if he was 

expecting to be placed on community control at this time, Hawkins stated that he 
Case No. 17-10-06 

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did not expect that would happen. (id. at 86.) Hawkins also acknowledged that he 

allowed Anthony to obtain cable services at the home that Anthony and Houston 

shared by using Hawkins’ name on the account but that he did not know whether 

Anthony “ran up the bill” and then did not pay it as asked by defense counsel. (id. 

at 83-84, 87.) He further testified that he was not present for the first break-in at 

Foodtown and when asked whether he told the police he was there, Hawkins 

answered that he did not tell the police that. (id. at 89.) When questioned further 

about this, Hawkins testified that he drove the Houston brothers in September and 

that he only drove them to one break-in, one time. (id.) 

{¶23} During re-direct examination, the prosecutor asked Hawkins if there 

was “some reason why you remember September 25, ’09, something that jarred 

your memory?” (id. at 90.) In response, Hawkins testified that “it was rainin’ and 

I remember what, you know, I remember he – he had, like, a hoodie on when we 

got – we got in the car and he got out of the car.” (id.) The prosecutor then asked 

Hawkins if the September 25, 2009 video showed that it was raining, and Hawkins 

stated that it did. (id.) 

{¶24} The next witness to testify was Ulysee Robinson, Jr. Robinson 

testified that he had felony convictions in Georgia for armed robbery, assault, drug 

abuse, drug trafficking, and providing false information. (Jan. 5, 2010, Tr. at 94.) 

He also testified that he knew Houston and that Houston lived in his 
Case No. 17-10-06 

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neighborhood. (id. at 95.) Robinson testified that Houston told him about the 

breaking and entering at Handy Dandy and that he had some cigarettes that he got 

from the Handy Dandy without buying them. (id.) The prosecutor then asked 

Robinson if Houston told him about the breaking and entering of Foodtown, and 

Robinson replied, “[n]ot him quite, his brother did.” (id.) Robinson further 

testified that he had watched the video surveillance from the Handy Dandy breakin and the first Foodtown break-in and that he saw Houston in both of these 

videos. (id. at 95-97.) 

{¶25} During cross-examination, Robinson was asked if his conviction in 

Georgia for providing false information was based on testimony in court. (id. at 

97.) Robinson answered that it was not and explained, “It had nothin’ to do with 

court. It was – I had did [sic] somethin’ else and I wasn’t puttin’ myself involved 

with it so they just got me with lying.” (id. ) Defense counsel then asked if he 

meant that he gave false information to the police officers during part of an 

investigation, and Robinson stated, “He was providing false information to me too 

so we both was doin’ it.” (id. at 98.) Robinson also admitted that he was 

convicted of three counts of drug trafficking in Ohio. Robinson further testified 

that he was first contacted about these break-ins when the police came to his home 

to execute a search warrant. (id. at 99-100.) During this search, the police found 

cigarettes. (id. at 100.) Robinson was asked if Hawkins gave him these cigarettes 
Case No. 17-10-06 

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and what his relationship was with Hawkins. (id.) Robinson testified that he did 

not know Hawkins and that Hawkins did not give him the cigarettes that were 

found in his home. (id.) Robinson further testified that he was not charged with 

anything relating to the cigarettes found in his home and he did not expect to be. 

(id.) 

{¶26} On re-direct examination, Robinson testified that cigarettes were not 

found in his home and explained that they were actually cigarettos, which he 

described as mini-cigars. (id. at 101-102.) Robinson also testified that the 

cigarettos came from Houston and his brother and that he bought them from 

Houston for $2.00-2.50 a pack although they have a retail price of $3.00-4.00. (id. 

at 102.) 

{¶27} Detective Jack Baker of the Sidney Police Department also testified. 

Det. Baker was assigned to investigate the three break-ins at issue. During his 

investigation, he viewed the video surveillance from all three break-ins. (Jan. 5, 

2010, Tr. at 105-106.) He further testified regarding the mode of entry into Handy 

Dandy and Foodtown when they were broken into and what was taken from the 

businesses. (id. at 106-107.) Det. Baker also testified that the Black & Mild 

“cigars” that were taken were cigarettos such as the ones described by Robinson 

during his testimony. (id. at 106.) 
Case No. 17-10-06 

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{¶28} During cross-examination, Det. Baker stated that he was not in 

charge of collecting evidence for these three break-ins, but rather, that was the 

responsibility of the respective evidence technicians called to each scene. (id. at 

107-108.) However, he did acknowledge that as the detective assigned to these 

cases, he was aware of the evidence that was collected in each incident. (id. at 

108.) Det. Baker testified that none of the objects used to break the glass in the 

doors was collected but that the Black & Mild packages found behind Handy 

Dandy by Officer Robbins, the glass, and a lift of a shoeprint found at one of the 

scenes were collected. (id. at 109-110.) However, none of these items had any 

testing performed on them.2

 (id. at 110.) Det. Baker also testified that to his 

knowledge no cigarettes or Black & Milds were found at Houston’s home after his 

arrest. (id.) Defense counsel also had Det. Baker read a portion of his police 

report detailing the discussion he had with Hawkins on October 2, 2009, which 

stated, “Dustin did not drive them to Sidney Foodtown on the second occasion it 

was broken into but he knows – but he knows they did it. * * * They [sic] knows 

they did that, too.” (id. at 113.) 

{¶29} On re-direct, Det. Baker testified that the objects used to break the 

glass in the doors were not taken as evidence and examined because fingerprints 

are never lifted from concrete blocks or rocks. (id. at 115.) He also testified that 

 

2

 Det. Baker testified that the shoeprint lift was sent to the lab but he never heard anything back from the 

lab regarding the lift. (id. at 110.) 
Case No. 17-10-06 

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the video surveillance shows the blocks and flower pot used to break the glass in 

the doors. (id. at 114-115.) During re-cross examination, Det. Baker was asked 

about obtaining fingerprints from the cellophane wrapping of the cigarettes that 

were recovered by Officer Robbins, and he testified that obtaining fingerprints 

from evidence is difficult. (id. at 115.) 

{¶30} At the conclusion of this evidence, the State moved to admit Exhibit 

1, it was admitted, and the State rested. Houston did not present any evidence. 

{¶31} After reviewing this evidence and in construing it in a light most 

favorable to the prosecution, we cannot conclude that there was insufficient 

evidence for Houston’s convictions. Moreover, we cannot conclude that his 

convictions were against the manifest weight of the evidence. 

{¶32} The jury was able to view the demeanor of the witnesses, including 

their candor. Both Hawkins and Robinson positively identified Houston in the 

surveillance videos from Handy Dandy and the first Foodtown break-in, and 

Hawkins also identified Houston in the footage from the second Foodtown breakin. Hawkins testified that Houston admitted to him that he broke into the Handy 

Dandy. In addition, Hawkins stated that he drove Houston to the second break-in 

at Foodtown, which he remembered involved inclement weather. The video 

surveillance of this break-in shows that it was raining during this time. The 

weather also served to explain the difference in Hawkins’ statement to Det. Baker 
Case No. 17-10-06 

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that he drove Houston to the first Foodtown break-in and his testimony at trial that 

he drove Houston to the second Foodtown break-in because he testified that his 

memory was “jarred” about it being rainy on the night that he drove. Robinson 

further testified that Houston told him about breaking and entering into Handy 

Dandy and attempted to sell him cigarettes that he got from Handy Dandy but did 

not pay for them. 

{¶33} While Hawkins received the benefit of two charges being dismissed 

by testifying against Houston, Robinson had no such benefit. Further, the jury was 

well aware of the credibility issues of these two men, including their respective 

felony records. However, they saw these witnesses testify, were able to view the 

video surveillance themselves, and were able to see Houston first-hand and 

determine whether he was the person in the videos. Although two of the videos 

showed the man identified as Houston wearing a white, scarf-like covering over 

his face, much of his face can still be seen and his build and what he was wearing 

are readily ascertainable. Furthermore, the evidence showed the same modus 

operendi during each incident: the perpetrator obtained entry by breaking the 

lower portion of the glass front door, immediately went to the tobacco products, 

stole only cigarettes and Black & Milds, stayed inside the store for a very short 

period of time, and wore similar clothing and head coverings. Thus, a reasonable 

juror could conclude that Houston committed all three offenses. Accordingly, we 
Case No. 17-10-06 

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do not find that the jury clearly lost its way and created such a manifest 

miscarriage of justice that the convictions must be reversed and a new trial 

ordered. The second assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. III

THE DEFENDANT WAS DENIED HIS CONSTITUIONAL 

[sic] RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

{¶34} In his third assignment of error, Houston maintains that he was 

denied his right to the effective assistance of counsel. More specifically, Houston 

asserts that his trial counsel was ineffective for failing to meet with him and 

prepare, failing to request that the court make further inquiry into his desire to 

represent himself, failing to issue a subpoena for the alibi witness, failing to file a 

motion to sever the counts, and failing to object to the hearsay testimony of 

Robinson. 

{¶35} A defendant asserting a claim of ineffective assistance of counsel 

must establish that (1) counsel’s performance was deficient or unreasonable under 

the circumstances; and (2) the deficient performance prejudiced the defendant. 

State v. Kole, 92 Ohio St.3d 303, 306, 2001-Ohio-191, 750 N.E.2d 148, citing 

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052. In order to 

show counsel’s conduct was deficient or unreasonable, the defendant must 

overcome the presumption that counsel provided competent representation and 

must show that counsel’s actions were not trial strategies prompted by reasonable 
Case No. 17-10-06 

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professional judgment. Strickland, 466 U.S. at 687. Counsel is entitled to a strong 

presumption that 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. 

{¶36} Tactical or strategic trial decisions, even if unsuccessful, do not 

generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 

558, 1995-Ohio-104, 651 N.E.2d 965. Rather, the errors complained of must 

amount to a substantial violation of counsel’s essential duties to his client. See 

State v. Bradley (1989), 42 Ohio St.3d 136, 141-42, 538 N.E.2d 373, quoting State 

v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623. Prejudice results when 

“there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Bradley, 42 Ohio St.3d at 

142, citing Strickland, 466 U.S. 691. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Bradley, 42 Ohio St.3d at 

142; Strickland, 466 U.S. at 694. 

{¶37} Houston’s first claim that his counsel was ineffective is that his 

attorney did not meet with him and prepare. However, the record belies this 

claim, as Houston actually informed the court that his attorney came to see him on 

December 17, 2009, and counsel stated that he had met with Houston the previous 

day and discussed the case with him. (Jan. 5, 2010, Tr. at 6.) Further, the only 
Case No. 17-10-06 

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complaints lodged by Houston about trial counsel was that he did not come to see 

him at the jail until mid-December and that he needed more witnesses. The record 

is devoid, as is the brief in this case, as to what trial counsel should have or even 

could have done to prepare this case, much less what prejudice Houston suffered 

as a result. Therefore, we cannot conclude that trial counsel was ineffective in this 

regard. 

{¶38} Houston next asserts that trial counsel was ineffective for failing to 

request that the trial court make further inquiry into his desire to represent himself. 

Again, Houston has failed to demonstrate how counsel’s performance was 

deficient or unreasonable under the circumstances or how he was prejudiced as a 

result of this failure, particularly in light of our discussion in the first assignment 

of error. 

{¶39} As for Houston’s claim that counsel was ineffective for failing to 

issue a subpoena to his alibi witness, the record also belies this assertion. Defense 

counsel informed the court that he had made arrangements to have Bridgette 

Stoudimire, Houston’s alibi witness, testify at trial but that Houston contacted her 

the day before trial and told her not to appear at trial. Trial counsel had no duty to 

subpoena Stoudimire under these circumstances because he had made 

arrangements with her to voluntarily testify for Houston and there is nothing in the 

record to indicate that she would not have appeared. Apparently, the only reason 
Case No. 17-10-06 

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she did not appear was because Houston, the party on whose behalf she was going 

to testify, called her and told her not to come. Thus, even if defense counsel 

issued the subpoena on Houston’s behalf, Stoudimire was not obligated to follow 

the commands of the subpoena once Houston told her that she need not appear. 

See Crim. R. 17(G). Moreover, Houston has proffered no information regarding 

what Stoudimire’s testimony would have been, including whether she would have 

been an alibi for one, two, or all three incidents. Therefore, he has failed to 

demonstrate that counsel’s performance was deficient or unreasonable under these 

circumstances or that he suffered prejudice as a result. 

{¶40} Houston also contends that counsel was ineffective for failing to file 

a motion to sever these three offenses. A failure to file a motion does not 

constitute ineffective assistance of counsel per se. See State v. Madrigal, 87 Ohio 

St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52. There must also be a reasonable 

probability that the motion will be successful. State v. Robinson (1996), 108 Ohio 

App.3d 428, 433, 670 N.E.2d 1077; State v. Ligon, 3rd Dist. No. 4-2000-25, 2001-

Ohio-2231. 

{¶41} The Rules of Criminal Procedure permit the joinder of offenses 

when they “are of the same or similar character, * * * or are based on two or more 

acts or transactions connected together or constituting parts of a common scheme 

or plan[.]” Crim.R. 8(A). Generally, the law favors joining multiple offenses in a 
Case No. 17-10-06 

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single trial under Crim.R. 8(A) if the offenses charged are of the same or similar 

character. State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. 

“[J]oinder and the avoidance of multiple trials is favored for many reasons, among 

which are conserving time and expense, [and] diminishing the inconvenience to 

witnesses * * *.” State v. Torres (1981), 66 Ohio St.2d 340, 343, 421 N.E.2d 

1288. An accused may move to sever the charges under Crim.R. 14, but he has 

the burden to affirmatively demonstrate that his rights will be prejudiced by the 

joinder. Lott, supra. A showing by the State that the evidence relating to each 

crime is simple and direct negates any claims of prejudice and renders joinder 

proper. Id.; State v. Roberts (1980), 62 Ohio St.2d 170, 405 N.E.2d 247. 

{¶42} As previously discussed in the second assignment of error, these 

charges were identical counts of breaking and entering and the facts surrounding 

each incident was of a similar character and demonstrated a common scheme 

and/or plan. Thus, they were properly tried together pursuant to Crim.R. 8. 

Moreover, Houston has not demonstrated any prejudice, and any such claim of 

prejudice would have been negated by the simple and direct evidence relating to 

each crime. We find that there was not a reasonable probability that if counsel had 

filed a motion to sever that it would have been successful, and counsel did not 

render ineffective assistance by failing to file a motion to sever. 
Case No. 17-10-06 

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{¶43} Lastly, Houston argues that counsel was ineffective for failing to 

object to the hearsay testimony of Robinson. During Robinson’s testimony, the 

following line of questioning occurred between the prosecutor and Robinson:3

Q: Defendant tell you about the breaking and entering of 

Foodtown? 

A: Not him quite, his brother did. 

(Jan. 5, 2010, Tr. at 95.) Counsel for Houston did not object to this testimony. 

{¶44} Hearsay is defined as “a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the 

truth of the matter asserted.” Evid.R. 801(C). Here, Robinson did not provide a 

statement made by Anthony to prove the truth of the matter asserted. Instead, he 

simply stated that Anthony told him about the breaking and entering of Foodtown; 

he did not say what Anthony told him about the breaking and entering. 

Accordingly, this testimony did not constitute hearsay. Further, even if this were 

hearsay, there was nothing in this statement to implicate Houston, and the State 

did not proceed any further with this line of questioning. Thus, Houston has not 

 

3

 Houston cites to page 98 of the trial transcript in his argument of this point. However, that page contains 

the questioning of Robinson by Houston’s trial counsel regarding Robinson’s prior convictions. 

Nevertheless, in his second assignment of error, Houston references hearsay testimony elicited on page 95 

of the transcript. In reviewing that page, the State’s brief assumes that Houston is referring to the portion 

of transcript involving what Houston told Robinson. We do not make the same assumption, understanding 

that a statement of a party opponent, such as Houston, is not hearsay, see Evid.R. 801(D)(2)(a). Rather, we 

can only assume that Houston is referring to the portion involving what Anthony told Robinson. Although 

we elect to analyze this issue under this assumption, we note that App.R. 16(A)(7) places the responsibility 

on the appellant to cite to the proper parts of the record upon which he bases his argument. 
Case No. 17-10-06 

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shown any prejudice from the failure to object to this testimony. Absent a 

showing of prejudice, Houston has not shown that he was denied the effective 

assistance of counsel. 

{¶45} For all of these reasons, the third assignment of error is overruled. 

{¶46} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

 Judgment Affirmed

WILLAMOWSKI, P.J., and ROGERS, J., concur. 

/jlr