[Cite as State v. White, 2019-Ohio-4562.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

VINTON COUNTY 

STATE OF OHIO, : 

 : Case No. 19CA715 

Plaintiff-Appellee, : 

 : 

vs. : DECISION AND JUDGMENT 

: ENTRY 

KEITH A. WHITE, : 

 : 

 Defendant-Appellant. : Released: 11/01/19 

_____________________________________________________________ 

APPEARANCES: 

Timothy P. Gleeson, Logan, Ohio, for Appellant. 

Trecia Kimes-Brown, Vinton County Prosecutor, and William L. Archer, Jr., 

Assistant Vinton County Prosecutor, McArthur, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J. 

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

judgment entry convicting Appellant, Keith White, of felonious assault, 

disrupting public services, and domestic violence. 

{¶2} On appeal, Appellant asserts (1) “[he] was denied his right to due 

process and his right to compulsory attendance of a witness when the trial 

court ruled he could not call the assistant prosecuting attorney as a witness,” 

and (2) “[he] was denied his right to due process when his trial attorney 
Vinton App. No. 19CA715 2 

provided ineffective assistance of counsel by failing to move the trial court 

for White to appear before the jury in clothing other than a jail uniform.” 

{¶3} Based upon our review of the law and the record, we overrule 

Appellant’s assignments of error and affirm the judgment of the trial court. 

PROCEDURAL HISTORY 

{¶4} The State charged Appellant with attempted murder, felonious 

assault, domestic violence, disrupting public service, and aggravated 

menacing. Appellant pleaded not guilty to all charges. The case proceeded 

to trial on all charges, except aggravated menacing. 

{¶5} Prior to Appellant’s trial, the court addressed Appellant’s 

subpoena to compel the assistant prosecutor in this case to appear and bring 

all notes and mental recollections from his conversation with Crystal Arthur 

(“Ms. Arthur”), the victim in this case, regarding her purported claim that 

Appellant took video/pictures of his attack. 

{¶6} Appellant argued that the assistant prosecutor’s testimony would 

provide “Brady material. It’s constitutional.” Appellant’s counsel asserted 

that the assistant prosecutor informed him that Ms. Arthur alleged Appellant 

had recorded the assault of her with his cell phone. However, Appellant 

claimed that the State had never produced video of the attack during 

discovery. Therefore, Appellant argued, the only way to determine the 
Vinton App. No. 19CA715 3 

content of that recording was through the testimony of the assistant 

prosecutor. 

{¶7} In response, the State admitted that it had disclosed to 

Appellant’s counsel that Ms. Arthur claimed there was a cell phone video of 

Appellant’s assault of Ms. Arthur. The State further asserted that they 

recovered the phone and shipped it off for review, but “[n]othing 

materialized.” And, the State argued that it was nearly certain that it 

informed defense counsel that the phone contained no video of the attack. 

Finally, the prosecutor also argued that he had disclosed this information to 

Appellant’s counsel in April, more than six months before the trial in 

November, and yet Appellant did not raise this issue until trial. 

{¶8} Appellant’s counsel admitted that the prosecutor had informed 

him that no recording existed, but he argued that “the only proof of that [no 

video of the attack exists] is [the assistant prosecutor’s testimony].” 

{¶9} The trial court pointed out that the prosecutor had already 

informed Appellant that there was nothing on the phone so the court didn’t 

think that there was a genuine dispute to which the prosecutor could testify. 

And, after confirming with the prosecution that Ms. Arthur was going to 

testify, the court also pointed out that Appellant could cross-examine the 

victim regarding the alleged videotaping. 
Vinton App. No. 19CA715 4 

{¶10} The trial court found that because the State had previously 

disclosed to Appellant, albeit informally, that there was no recording on the 

phone, there was no Brady violation because there was nothing that had been 

withheld by the State. The court again noted that Appellant would have an 

opportunity to cross-examine the victim regarding any alleged videotaping 

of the alleged attack. The court stated: “And so then the question comes 

back to whether, whether based on all of this taken together is a sufficient 

reason, uh basically, to disqualify the prosecutor from presenting the case 

from going forward with a trial.” The court found “there is not[,]” and 

denied Appellant’s request to call the prosecutor as a witness for the defense. 

{¶11} Prior to trial, the State also raised a concern that Appellant was 

dressed in prison clothes. Prior to voir dire and out of the jury’s presence, 

the prosecutor brought to the attention of the court that the State had 

concerns that the defendant was in prison clothes instead of street clothes for 

his trial. However, Appellant’s counsel stated: “I have nothing to add to that 

judge. I am not familiar with the case law to which [the prosecutor] is 

referring.” The judge then stated: “All right. Very well then. Anything 

further?” Both attorneys responded in the negative, and proceedings 

continued. 
Vinton App. No. 19CA715 5 

{¶12} The State’s first witness at trial was Dr. Thanh Guyen, a trauma 

surgeon at Grant Hospital in Columbus. He testified that on February 13, 

2018, he treated Ms. Arthur for a skull fracture and bleeding in the brain, 

which were caused by trauma to the head. 

{¶13} The State’s next witness, Ms. Arthur, testified that she moved 

in with Appellant in June of 2017. Ms. Arthur described Appellant as her 

best friend. She testified that “[life] was good.” However, she testified that 

in the winter of 2018 finances became an issue in their relationship. Ms. 

Arthur testified that during an argument over finances, Appellant hit her in 

the mouth and then in her face, causing her to bleed. She testified that 

Appellant laughed and that at some point she passed out. Ms. Arthur 

testified that Appellant poured water on her face and then started kicking her 

in the side, telling her to wake up. She testified that he said he was going to 

kill her, grabbed her by the hair several times and even put her in the 

bathtub, turned on the water, and held her head under water. She testified 

that she tried to fight back, but was not strong enough. She testified that 

Appellant had taken her phone and keys and that he even tried to strangle 

her with an extension cord. Ms. Arthur testified that she finally got away 

from him and called 911 on an old phone. 
Vinton App. No. 19CA715 6 

{¶14} Ms. Arthur testified that once the officers arrived they arrested 

Appellant. She testified that an ambulance arrived and the emergency 

medical technicians told her that she needed to go to the hospital. She 

testified that she didn’t want to leave her car behind so she called her mother 

and arranged for them to meet at the gas station. Ms. Arthur testified that 

she pulled into the gas station, but the next thing she remembered was 

waking up in the hospital. She testified that she did not recall being “lifeflighted” to Grant hospital in Columbus. She testified that she continues to 

suffer “consistent” headaches, memory loss, problems with her vision, and 

pain in her foot. Ms. Arthur then identified Appellant her assailant. 

{¶15} On cross examination, Ms. Arthur admitted that her testimony 

was inconsistent with what she stated in her statement. She admitted that 

there was no discussion in the statement that Appellant had attempted to 

drown her in the bath tub. She also admitted that there was nothing in the 

report about Appellant hitting her with a hammer, but she mentioned a 

hammer attack in a second report. Finally, Appellant’s counsel asked Ms. 

Arthur: “Okay. And do you, you indicated you recall alleging that 

[Appellant] held you down, beat you and videoed the incident while it was 

going on?” Ms. Arthur responded: “He said he was. I wasn’t on the other 
Vinton App. No. 19CA715 7 

side of the phone. All I know is he had it in front of me while he was hitting 

me.” 

{¶16} The State’s third witness was Vinton County Deputy Sheriff 

Mark Cosgray. He testified that he responded to a domestic violence call at 

43753 Covered Bridge Road. He testified that when he arrived he saw 

Deputy Nick Trainer talking to Ms. Arthur in the yard. Deputy Cosgray 

testified that he entered the house and both deputies arrested Appellant for 

an existing warrant, and Deputy Trainer read Appellant his rights. Deputy 

Cosgray testified that while he was transporting Appellant to the sheriff’s 

office, Appellant admitted that he had struck Ms. Arthur with a crutch 

because she had attacked him, causing him injury. Deputy Cosgray testified 

that he took pictures of Appellant’s injuries. 

{¶17} Vinton County Deputy Sheriff Trainer was the State’s next 

witness. He testified that he responded to Ms. Arthur’s 911 call and when 

he arrived Ms. Arthur was limping toward him from the porch, she appeared 

to have bruises on her body, and her makeup was running down her face 

from crying. Deputy Trainer testified that Ms. Arthur told him that 

Appellant had beaten her, and he was in the house. Deputy Trainer testified 

that initially he called an ambulance because Ms. Arthur “seemed pretty 

bruised up and her limp and everything.” Deputy Trainer testified that he 
Vinton App. No. 19CA715 8 

went into the house and he found Appellant sitting on the couch. Deputy 

Trainer testified that when they arrested Appellant he became agitated and 

was “mouthing” the deputies. Deputy Trainer testified that Ms. Arthur told 

him that Appellant had threatened her with a hand gun, shot gun, and a 

sawed-off shot gun, which he located and collected. Deputy Trainer testified 

that Ms. Arthur showed him a broken, bent crutch that she alleged Appellant 

used to beat and choke her. Deputy Trainer testified that he took pictures of 

the crutch and Ms. Arthur’s injuries (bruising and bloody lip). Deputy 

Trainer testified that he and Deputy Cosgray told Ms. Arthur that she needed 

to go to the hospital, but he said she was “adamant” about taking herself to 

the hospital. Deputy Trainer and the emergency medical personnel packed 

some of Ms. Arthur’s things and then put them in her car. Deputy Trainer 

testified that he then let Ms. Arthur use his phone to contact a family 

member and she made arrangements to meet them. 

{¶18} On cross examination, Deputy Trainer agreed that his report of 

this incident was not entirely consistent with his testimony. Specifically, 

Deputy Trainer testified that Ms. Arthur barely spoke to him the day of the 

incident, but his report indicates that she was “screaming and crying.” 

When asked if he recalled Ms. Arthur having any memory issues at the time, 

Deputy Trainer testified she “had a hard time recollecting what all had 
Vinton App. No. 19CA715 9 

occurred to me at that incident.” Deputy Trainer testified, clarifying that 

Ms. Arthur packed her clothes into trash bags and then he and the 

emergency medical personnel loaded those bags into Ms. Arthur’s car. 

Deputy Trainer testified that he did not see the cord that Ms. Arthur alleged 

Appellant used in an attempt to choke her. Deputy Trainer testified that Ms. 

Arthur told him that the attack happened at 2 p.m., but his report stated it 

happened at 3 p.m. 

{¶19} The State’s next witness was Kathryn Carter, an emergency 

room nurse at Grant Medical Center. Nurse Carter testified that Ms. Arthur 

was alert and oriented and the staff had administered “Nubian” (pain 

medication) and NARCAN. Nurse Carter then reviewed Ms. Arthur’s 

medical record from that visit, which admitted her on 2-13-2018 and 

discharged her on 2-15-2018. She testified that it indicated that Ms. Arthur 

was not intoxicated. She testified she could not state why Ms. Arthur was 

given NARCAN, but that it can be given to reverse the effect of Nubian if a 

patient gets too drowsy. 

{¶20} The State’s next witness was Ashley Cowgill, a speech 

language pathologist. Ms. Cowgill evaluated Ms. Arthur during her hospital 

visit for the assault. During her testimony, Ms. Cowgill read from a report 

from Dr. Jonathan Pedrick who had evaluated Ms. Arthur. Reading from 
Vinton App. No. 19CA715 10

that report, Ms. Cowgill stated “Severe traumatic brain injury with subdural 

hematoma” with a “gait disturbance and acute pain.” 

{¶21} The State’s next witness was Mary Marcum, the SANE (Sexual 

Assault Nurse Examiner) coordinator at Grant Hospital. She testified that 

she is called for sexual assault victims, elder abuse victims and domestic 

violence victims. Nurse Marcum testified that SANE nurses question the 

victim about what happened and document injuries, etc. Nurse Marcum 

testified that SANE nurses help bridge the gap between medical and legal 

assistance. 

{¶22} Nurse Marcum testified that she saw Ms. Arthur when she was 

in the hospital for the assault. Nurse Marcum documented Ms. Arthur’s 

injuries, which included injury/trauma to her mouth, face, head, neck, chest, 

buttocks, back, and her extremities, as well as “brain bleeds on each side of 

her skull,” as documented by Ms. Arthur’s treating physician. Nurse 

Marcum testified that Ms. Arthur reported that Appellant punched her, 

slapped her, dragged her by the hair, strangled her, and put her under water 

to be drowned. Nurse Marcum noticed a lot of bruising, a ligature mark, 

abrasions, missing fingernails, blisters on her fingers, and a petechiae 

(minute blood vessel ruptures on the surface of the skin) in one of her eyes. 

Nurse Marcum took 106 photographs documenting Ms. Arthur’s injuries. 
Vinton App. No. 19CA715 11

Nurse Marcum testified that there was bruising behind Ms. Arthur’s left ear, 

which can indicate strangulation. Nurse Marcum testified that trauma can 

render people unable to give the exact time and date of events that have 

occurred. 

{¶23} On cross examination, Nurse Marcum admitted that petechiae 

can occur from reasons other than trauma. Nurse Marcum also admitted that 

there was no DNA or physical evidence collected in this case. 

{¶24} The State’s next witness was Rebecca Hess, Ms. Arthur’s 

mother. Ms. Hess testified that in February 2018, she received a call from 

Deputy Trainer that Ms. Arthur was in bad shape and she wanted to meet 

Ms. Hess at a gas station. Ms. Hess testified that she met Ms. Arthur at the 

gas station and that her daughter’s face was “all busted up” and “she could 

barely walk.” Ms. Hess testified that she drove Ms. Arthur to the hospital at 

Adena. She testified that Ms. Arthur blacked out several times during the 

trip. She testified that the physicians at Adena Hospital had Ms. Arthur 

transported by “CareFlight” to Grant Hospital in Columbus. Ms. Hess 

testified that after Ms. Arthur was released from the hospital, she cared for 

Ms. Arthur. 
Vinton App. No. 19CA715 12

{¶25} After testimony from Paul Mullins, the dispatcher for the 

Vinton County Sheriff’s Office, the State rested its case. Appellant did not 

present any witnesses. 

{¶26} The jury found Appellant guilty of all charges, except 

attempted murder. The trial court imposed an eight-year prison sentence for 

felonious assault, 18 months for disrupting public services, and 180 days for 

domestic violence, all to be served concurrently to each other for an 

aggregate eight-year prison sentence. It is from this judgment entry of 

conviction that Appellant appeals, asserting two assignments of error. 

ASSIGNMENTS OF ERROR 

“I. WHITE WAS DENIED HIS RIGHT TO DUE PROCESS AND HIS 

RIGHT TO COMPULSORY ATTENDANCE OF A WITNESS WHEN 

THE TRIAL COURT RULED HE COULD NOT CALL THE 

ASSISTANT PROSECUTING ATTORNEY AS A WITNESS. 

 

II. WHITE WAS DENIED HIS RIGHT TO DUE PROCESS WHEN 

HIS TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE 

OF COUNSEL BY FAILING TO MOVE THE TRIAL COURT FOR 

WHITE TO APPEAR BEFORE THE JURY IN CLOTHING OTHER 

THAN A JAIL UNIFORM.” 

ASSIGNMENT OF ERROR I 

{¶27} In Appellant’s first assignment of error, he contends the trial

court violated his right to compel the assistant prosecutor to appear as a 

witness in his case. 
Vinton App. No. 19CA715 13

{¶28} Appellant argues that he has a right to call the prosecutor as a 

witness under Ohio Const. Article 1, Section 10, which in pertinent part 

provides that certain accused criminal offenders “have compulsory process 

to procure the attendance of witnesses in his behalf.” Appellant alleges that 

Ms. Arthur informed the prosecutor that the attack was captured on cell 

phone video/pictures. Appellant alleges that the assistant prosecutor’s 

testimony - that no such media of the attack exists - “was of critical 

importance to [Appellant’s] case” to challenge Ms. Arthur’s credibility 

regarding her testimony that such video/pictures did exist. 

{¶29} Appellant also argues that calling the prosecutor as a witness in 

this case is not prohibited by Prof.Cond.R. 3.7, which addresses the ethical 

considerations when a lawyer is called as a witness. 

{¶30} The State argues that the purpose of the subpoena was to delay

the trial because the existence of any video/pictures of the attack was 

discussed in March-May 2018, but the subpoena was not filed until a few 

days before trial in November 2018. 

{¶31} The State also asserts that defense counsel was permitted to 

question Ms. Arthur on cross examination regarding the alleged 

video/pictures Appellant took of the attack. The State asserts that Ms. 

Arthur “did not deny that she told the assistant prosecutor that she thought 
Vinton App. No. 19CA715 14

Appellant was taking pictures or video of the attack.” Therefore, the State 

argues there was no need to challenge her testimony. Accordingly, the State 

argues that because “[Ms. Arthur] testified consistent with defense counsel’s 

desire,” the assistant prosecutor’s testimony was not necessary to 

Appellant’s case. 

Rules of Professional Conduct 

{¶32} Ohio courts “have no authority to address claimed violations of

the Rules of Professional Conduct - that authority rests solely with the Ohio 

Supreme Court.” State v. Montgomery, 8th Dist. Cuyahoga No. 99452, 

2013-Ohio-4193, ¶ 36, citing State ex rel. Buck v. Maloney, 102 Ohio St.3d 

250, 2004-Ohio-2590, 809 N.E.2d 20. “[T]he Rules of Professional Conduct 

have no bearing on the admissibility of evidence.” Id. “ ‘A violation of 

attorney disciplinary rules is not of constitutional magnitude and 

consequently suppression is not constitutionally required.’ ” Id., quoting 

United States v. Guerrerio, 675 F.Supp. 1430, 1433 (S.D.N.Y.1987). 

Therefore, whether a trial attorney complies or violates the Rules of 

Professional Conduct is immaterial to the question of whether evidence is 

properly admitted or excluded. 

{¶33} Accordingly, we find that compliance with Prof.Cond.R. 3.7 

has no bearing on the admissibility of the prosecutor’s testimony. 
Vinton App. No. 19CA715 15

Witness Testimony 

 {¶34} “The Sixth Amendment to the United States Constitution and 

Section 10, Article I of the Ohio Constitution provide an accused with a 

right of compulsory process to obtain a witness's testimony.” State v. 

Lavery, 9th Dist. Summit No. 20591, 2001-Ohio-1638, citing Pennsylvania 

v. Ritchie, 480 U.S. 39, 56, 94 L.Ed.2d 40, (1987), Columbus v. Cooper, 49 

Ohio St.3d 42, 550 N.E.2d 937 (1990). And “[f]ew rights are more 

fundamental than the right of an accused to present witnesses on his behalf.” 

State v. Brown, 64 Ohio St.3d 649, 652, 1992-Ohio-19, 597 N.E.2d 510 

(1992), citing Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 652, 98 

L.Ed.2d 798 (1988). 

 {¶35} “The right to compulsory process, however, is not unlimited.” 

State v. Denis, 117 Ohio App.3d 442, 446, 690 N.E.2d 955 (1997), State v. 

Collins, No. 48159, 1984 WL 6341, at *3 (Ohio Ct. App. Dec. 6, 1984), 

State v. Smiddy, 2nd Dist. Stark No. 06CA0028, 2007-Ohio-1342, ¶ 25. 

“The principle that undergirds the defendant's right to present exculpatory 

evidence is also the source of essential limitations on the right.” Taylor v.

Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 654, 98 L.Ed.2d 798 (1988). 

“The trial process would be in shambles if either party had an absolute right 

to control the time and content of his witnesses' testimony.” Id. at 411. 
Vinton App. No. 19CA715 16

“The State's interest in the orderly conduct of a criminal trial is sufficient to 

justify the imposition and enforcement of firm, though not always inflexible, 

rules relating to the identification and presentation of evidence. Id. 

Therefore, “a defendant's right to present his own witnesses to establish a 

defense is prescribed by the rules of evidence.” State v. Denis, 117 Ohio 

App.3d at 442, 446, 690 N.E.2d 955 (6th Dist.). “A trial court has 

broad discretion in the admission or exclusion of evidence and so long as 

such discretion is exercised in line with the rules of procedure and evidence, 

its judgment will not be reversed absent a clear showing of an abuse 

of discretion with attendant material prejudice to defendant.” State v. Blair, 

2016-Ohio-2872, 63 N.E.3d 798, ¶ 67, quoting State v. Richardson, 4th Dist. 

Scioto No. 14CA3671, 2015-Ohio-4708, ¶ 62. 

{¶36} “A party may not predicate error on the exclusion of evidence 

during the examination in chief unless” (1) the party proffers the expected 

testimony or the proffer is apparent from the context of the questions asked, 

and (2) the exclusion of such evidence must affect a substantial right of the 

party. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 

996, ¶ 113, citing State v. Gilmore, 28 Ohio St.3d 190, 503 N.E.2d 147 

(1986), syllabus. If the excluded testimony does not have an impact on the 
Vinton App. No. 19CA715 17

jury’s verdict, it has not prejudiced the movant’s substantial rights. State v. 

Blair, 2nd Dist. Montgomery No. 26256, 2015-Ohio-3604, ¶ 14-15. 

{¶37} Finally, the Supreme Court of Ohio has “recognize[d] that a 

prosecuting attorney should avoid being a witness in a criminal

prosecution,” unless “it is a complex proceeding where substitution of 

counsel is impractical, * * * the attorney so testifying is not engaged in the 

active trial of the cause and it is the only testimony available * * *.” 

(Emphasis added.) State v. Coleman, 45 Ohio St.3d 298, 302, 544 N.E.2d 

622 (1989).1

 

{¶38} During cross examination, Appellant’s counsel asked Ms. 

Arthur: “Okay. And do you, you indicated you recall alleging that 

[Appellant] held you down, beat you and videoed the incident while it was 

going on?” Ms. Arthur responded: “He said he was. I wasn’t on the other 

side of the phone. All I know is he had it in front of me while he was hitting 

me.” (Emphasis added.) 

{¶39} Contrary to Appellant’s assertion, Ms. Arthur did not testify 

that a video of the attack existed. Rather, she alleged that Appellant told her

that he was videoing the attack. In fact, her statement - “I wasn’t on the 

other side of the phone” - indicates that Ms. Arthur was uncertain whether 

 

1

 While Coleman addressed a prosecutor testifying for the State, we believe the disfavor of having a 

prosecutor testify in a case is equally, if not more, compelling when it is the defendant who is calling for 

the prosecutor to testify. 
Vinton App. No. 19CA715 18

Appellant recorded the attack. Therefore, we find that the assistant 

prosecutor’s proffered testimony - that no video of the attack existed - would 

not have impeached Ms. Arthur’s testimony, or even undermined its 

credibility, which was the basis of Appellant’s argument on appeal. 

Consequently, we find the assistant prosecutor’s excluded testimony would 

not have impacted the jury’s verdict, i.e. it did not affect Appellant’s 

substantial rights. See Blair, 2nd Dist. Montgomery No. 26256, 2015-Ohio3604, ¶ 14-15. Moreover, because Ms. Arthur provided the only testimony 

necessary to answer Appellant’s question regarding the recording of the 

attack, Coleman also supported our conclusion that the assistant prosecutor 

should not have been called as a witness in this case. 

{¶40} Accordingly, the trial court did not abuse its discretion in 

precluding Appellant from calling the assistant prosecutor as a witness is his 

case. We overrule Appellant’s first assignment of error. 

ASSIGNMENT OF ERROR II 

{¶41} In his second assignment of error, Appellant alleges that he was 

denied his right to due process when his trial attorney provided ineffective 

assistance of counsel by failing to move the trial court for him to appear 

before the jury in clothing other than a jail uniform. 
Vinton App. No. 19CA715 19

{¶42} Prior to voir dire and out of jury’s presence, the prosecutor 

brought to the attention of the court and Appellant that the State had: 

concerns that the defendant is not in street clothes as he is in 

a jumper. Um I don’t think any of us here want to go forward 

and go through a trial of this length and magnitude to have 

the Court of Appeals say, well, but he was – he was in his 

jumper instead of street clothes. I don’t know how the court 

wants to address that, but I do want to note it on the record 

that I have some concerns about – about going forward with 

that. 

In response, Appellant’s counsel stated: “I have nothing to add to that judge. 

I am not familiar with the case law to which [the prosecutor] is referring.” 

The judge the stated: “All right. Very well then. Anything further?” Both 

attorneys responded in the negative, and proceedings continued. 

{¶43} Appellant argues that his trial counsel was ineffective for 

failing to request the trial court for an opportunity to appear before the jury 

in clothing other than his jail uniform. Appellant argues the United States 

Supreme Court held that appearing in a jail uniform before a jury is 

“inherently prejudicial” in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1961 

(1976). Because Appellant’s counsel purportedly was not familiar with 
Vinton App. No. 19CA715 20

Estelle or similar case law, and did not request that Appellant be dressed in 

clothing other than his jail uniform, Appellant argues that his performance 

was below an objective level of reasonable representation. He also argues 

that he was “directly prejudiced” by wearing his jail uniform before the jury. 

{¶44} The State argues that while Estelle held that wearing prison 

attire can be prejudicial, it did not establish a bright line test to make that 

determination when wearing prison attire was reversible error. This, the 

State argues, is because some defendants may prefer to wear prison clothing 

to elicit sympathy. Therefore, a defendant must show that he or she was 

compelled to wear prison clothing as a perquisite to finding prejudice. The 

State argues that Appellant failed to make the showing that his counsel was 

ineffective. 

{¶45} The State also highlights the fact that Appellant’s counsel was

made aware that Appellant was wearing prison clothing, and because he did 

not object, Appellant waived any right to claim that it was error. The State 

further argues that Appellant’s assignment of error should be rejected under 

the invited error doctrine. 

{¶46} “To establish constitutionally ineffective assistance of counsel, 

a defendant must show (1) that his counsel's performance was deficient and 

(2) that the deficient performance prejudiced the defense and deprived him 
Vinton App. No. 19CA715 21

of a fair trial.” State v. Barnhart, 4th Dist. Meigs Nos. 18CA8 and 18CA15, 

2019-Ohio-1184, ¶ 64, citing Strickland v. Washington, 466 U.S. 668, 687, 

104 S.Ct. 2052 (1984). “Failure to satisfy either part of the test is fatal to the 

claim.” State v. Gillian, 4th Dist. Gallia No. 16CA11, 2018-Ohio-4983, ¶ 12, 

citing Strickland at 697. 

{¶47} The United States Supreme Court has addressed the issue of 

“whether an accused who is compelled to wear identifiable prison clothing at 

his trial by a jury is denied due process or equal protection of the laws.” 

Estelle v. Williams, 425 U.S. 501, 502, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 

(1976). 

{¶48} Estelle found that in large part courts have “determined that an 

accused should not be compelled to go to trial in prison or jail clothing 

because of the possible impairment of the presumption [of innocence] so 

basic to the adversarial system.” (Citations omitted.) Id. at 504. However, 

Estelle also recognized that courts have declined to adopt a per se rule 

invalidating all convictions where a defendant had appeared before the jury 

in prison clothing. Id. at 508. The court stated that: 

[t]he reason for this judicial focus upon compulsion is 

simple; instances frequently arise where a defendant prefers 

to stand trial before his peers in prison garments. The cases 
Vinton App. No. 19CA715 22

show, for example, that it is not an uncommon defense tactic 

to produce the defendant in jail clothes in the hope of 

eliciting sympathy from the jury. Id. at 507-508, citing 

Andern v. Watt, 475 F.2d 881, 882 (10th Cir. 1973); Watt v. 

Page, 452 F.2d 1174, 1176 (10 Cir. 1972), Cf. Garcia v. 

Beto, 452 F.2d 655, 656 (5th Cir. 1971). 

Therefore, the court held that: 

although the State cannot, consistently within the Fourteenth 

Amendment, compel an accused to stand trial before a jury 

while dressed in identifiable prison clothes, the failure to 

make an objection to the court as to being tried in such 

clothes, for whatever reason, is sufficient to negate the 

presence of compulsion necessary to establish a 

constitutional violation. (Emphasis added.) Estelle, 425 

U.S. 501, 512-13, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 

(1976) 

{¶49} In State v. Judy, 4th Dist. Ross No. 08CA3013, 2008-Ohio5551, ¶ 37, the Court addressed whether Appellant’s trial counsel’s failure to 

object to the fact that his client wore prison clothing at trial constituted 

ineffective assistance of counsel. The appellant in Judy appeared at trial 
Vinton App. No. 19CA715 23

dressed in his prison clothes. Id. at ¶ 4. But during voir dire, Appellant’s 

counsel asked the jury if anyone would treat Appellant unfairly because his 

of his prison clothes. Id. “[T]here was no indication from the jury that there 

would be a problem.” Id. 

{¶50} On direct appeal, Appellant alleged that his “counsel was 

ineffective for not dressing her appropriately for trial.” Id. at ¶ 32. After 

reviewing the holding in Estelle, the court in Judy concluded that 

“[a]lthough other attorneys may have suggested or done otherwise, we 

decline to second-guess trial counsel's decision to allow his client to stand 

trial in prison garb because this decision has been acknowledged to be a 

strategic one.” Id. at ¶ 42, citing Estelle, supra, United States v. Wells, 9th 

Cir. No. 97-35656, 1998 WL 741173 (Oct. 13, 1998), State v. Singer, 4th 

Dist. Ross No. 99CA2845, 2000 WL 1093577, (July 31, 2000), State v. 

Edgington, 4th Dist. Ross No. 95CA2151, 1996 WL 720860 (Dec. 11, 

1996). Accordingly, the court rejected Appellant’s ineffective assistance of 

counsel argument. 

 {¶51} In addition, overwhelming evidence supporting an appellant’s 

convictions may negate any prejudice for wearing prison clothing at trial. 

See State v. Godbolt, 5th Dist. Licking No. 2003CA00034, 2004-Ohio-317, 

¶ 21. 
Vinton App. No. 19CA715 24

 {¶52} In this case, unlike in Judy, Appellant’s counsel was 

apparently unaware that under the law a defendant could not be compelled to 

wear prison clothes to trial. However, the prosecutor put Appellant on 

notice that a defendant had the option to wear street clothes at trial rather 

than prison clothing, even noting that he did not want Appellant’s prison 

clothing to become an issue on appeal. Nevertheless, Appellant never 

objected to his prison attire or otherwise expressed a desire to wear street 

clothes at trial. As Estelle stated: “the failure to make an objection to the 

court as to being tried in [prison] clothes, for whatever reason, is sufficient 

to negate the presence of compulsion necessary to establish a constitutional 

violation.” 

{¶53} Finally, there is overwhelming evidence supporting Appellant’s 

convictions. Although there are some inconsistencies in the testimony of 

some of the witnesses, the evidence and testimony support that Appellant 

physically assaulted Ms. Arthur and caused her significant injury. 

Accordingly, we find that Appellant cannot show that he was prejudiced by 

wearing his prison clothing at trial. See Godbolt. 

{¶54} Absent deficient representation and a lack of prejudice, we find 

that Appellant’s counsel was not ineffective. Accordingly, we overrule 

Appellant’s second assignment of error. 
Vinton App. No. 19CA715 25

CONCLUSION 

{¶55} Having overruled both of Appellant’s assignments of error, we 

affirm the trial court’s judgment of conviction. 

JUDGMENT AFFIRMED. 
Vinton App. No. 19CA715 26

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 Vinton 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. 

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, 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.