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State v. Oteng :: 2020 :: Ohio Court of Appeals, Tenth District Decisions :: Ohio Case Law :: Ohio Law :: US Law :: US LAW

    State v. Oteng

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    [Cite as State v. Oteng, 2020-Ohio-6939.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 19AP-763 v. : (C.P.C. No. 13CR-224) Dennis Oteng, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on December 29, 2020 On brief: Ron O'Brien, Prosecuting Lawyer, and Sheryl L. Prichard, for appellee. On brief: Dennis Oteng, seasoned se. APPEAL from the Franklin County Court of Common Pleas BRUNNER, J. ¶ 1 Defendant-appellant, Dennis Oteng, is presently serving a sentence of 18 years to existence for the capturing dying of Kingsley Owusu. Oteng appeals an October 8, 2019 order of the Franklin County Court of Common Pleas denying his postconviction petition following a hearing. We verify on the deserves, finding that, within the absence of testimony through a key witness to resolve considerable disparities among that witness' recorded declaration taken quickly after the taking pictures and his later affidavit, the trial courtroom did now not abuse its discretion in finding that Oteng had failed to set up in the postconviction listening to that his suggest's performance was ineffective and consequently unconstitutionally deficient. We also locate that the trial court docket did now not abuse its discretion in permitting an assistant prosecutor to testify on the listening to or in conserving the listening to inside the absence of the important thing witness wherein the witness turned into seemingly deliberately absent, wherein the listening to had already been No. 19AP-763 2 continued once due to the witness' absence, and where Oteng took no steps to subpoena or otherwise compel the witness' presence. We overrule all of Oteng's assignments of error. I. FACTS AND PROCEDURAL HISTORY ¶ 2 On January 15, 2013, a Franklin County Grand Jury indicted Oteng for the homicide of Kingsley Owusu. (Jan. 15, 2013 Indictment.) The Grand Jury observed probably purpose to indict on opportunity prices, homicide and prison murder, each with a firearm specification. Id. Oteng pled no longer guilty on January 18, 2013. (Jan. 18, 2013 Plea Form.) ¶ three During the month of April 2014, the trial courtroom held a jury trial at the case. He was located guilty on all counts, and after merging the legal counts, the trial court sentenced Oteng to 15 years to lifestyles consecutively with a three-12 months gun specification, for a complete of 18 years to life. ¶ 4 Oteng appealed. (June 11, 2014 Notice of Appeal.) On direct attraction, we affirmed Oteng's conviction and stated the subsequent to be the information of the case, based on the trial courtroom report: In the early morning hours of January five, 2013, Kingsley Owusu changed into shot and killed inside the automobile parking space of the Filipino Center on Westerville Road in Columbus, Ohio. The sufferer's pleasant buddy, Benjamin Appiah, defined the events that lead to Owusu's death as follows. In the late night of January 4, 2013, Owusu and his pal Gab[riel Basoah], additionally called G-money, picked him up at home and traveled to Lounge 62 in Westerville. When they arrived at Lounge 62, they ran into a chum by way of the call of David Aseidu who became at the living room along with his friend Andrea d'Almeida. Appiah testified that he and these kinds of different people hale from the West African state of Ghana. He described the Ghanaian network in Columbus as a fairly tight knit organization, and he stated that maximum participants of the community realize every different. At Aseidu's notion, the group of 5 left Lounge sixty two and headed to the Filipino Center to wait a New Year's birthday party cohosted through Appiah's former lady friend, Alexis Wellington, and her nice pal, Helen Mamo. According to Appiah, he and Wellington had dated "on and stale" for about one and one-1/2 years prior to that point. (Tr. 335.) Appiah changed into also aware that appellant became the daddy of Wellington's six[-]year[]old daughter, Michelle. When they arrived on the birthday celebration, [Basoah] parked his vehicle behind the parking lot. Aseidu, who became touring with No. 19AP-763 3 d'Almeida, parked their car towards the main entrance of the Filipino Center. Appiah testified that he exited the automobile and started walking towards the main front, just at the back of Owusu and [Basoah]. As [Basoah] and Owusu crossed the car parking zone, a person by way of the name of Yaw Boayke confronted Owusu and commenced yelling at him in an "angry tone." (Tr. 353.) [Basoah] stepped among the two and then struck Boayke in the face together with his brow. The two guys fell to the floor wrestling earlier than Appiah become in a position to drag [Basoah] off of Boayke. When Boayke again to the Filipino Center, he became bleeding from the mouth, and he informed Mamo that [Basoah] had headbutted him. By this time, Appiah had entered the Filipino Center to check out the birthday celebration, while [Basoah] and Owusu waited outdoor. Appiah then saw appellant and "his group" of four or five men rush past him toward the car parking zone. (Tr. 371.) Appiah recognized a man he knew as Daniel, additionally referred to as D.J., and some other guy he knew as Stevenson following appellant out the main entrance. At that point, Appiah went out to the parking lot in which he saw appellant coming near Owusu with a handgun raised and pointed at him. Appiah got among Owusu and appellant in an effort to diffuse the scenario. When he became faraway from appellant to face Owusu, he noticed that Owusu become keeping a small handgun. Appiah pleaded together with his friend to present him the gun. He instructed Owusu "[l]et's just leave the scene." (Tr. 370.) According to Appiah, Owusu surpassed him the gun. At that moment, Appiah heard a [gunshot] ring out behind him, and he commenced going for walks towards the main entrance of the Filipino Center to escape. When he reached the doorway, he realized Owusu changed into not with him. Concerned for his friend, Appiah became to head back outside, however he changed into momentarily delayed through a protection shield. When Appiah made it outdoor, he noticed appellant and Owusu going through each other about fingers['] duration[] apart with appellant pointing a handgun at Owusu. Appiah testified that he changed into standing approximately ten ft away from the two guys with a clear view while he saw appellant fireplace a shot at Owusu. According to Appiah, the shot struck [Owusu] inside the top frame, and he right away fell to the ground. Appellant then rushed over to Owusu and began kicking him within the head. When appellant broke off his assault and ran, Appiah tried to fire a shot from Owusu's gun, but it jammed. Appiah ejected two live shells from the gun after which commenced strolling after No. 19AP-763 four appellant, capturing the gun in the air as appellant fled the car parking zone in his black BMW. Owusu died due to a single gunshot wound to the chest. Columbus Police arrested appellant on January 6, 2013, at the house of his pal Kwame Kusi. State v. Oteng, 10th Dist. No. 14AP-466, 2015-Ohio-1231, ¶ 2-nine ("Oteng I"). ¶ five Subsequently, on Oteng's enchantment of the trial courtroom's denial of postconviction remedy, we again reviewed the complete file and also said: The police recovered a single .380 handgun, two stay .380 rounds, six spent nine mm shell casings, and two spent .380 casings at the scene. (State's Ex. A; State's Ex. A-1.) Ballistics evaluation discovered that two nine mm casings were ejected by way of one firearm, four 9 mm casings were ejected from some other, and the 2 .380 casings had been spent via a third weapon. (Tr. at 318; State's Ex. S-2.) The .380 casings could neither be excluded nor diagnosed as having been fired in the gun recovered at the scene (which Appiah testified turned into the one he used). (Tr. at 317, 320, 395; State's Ex. S-2; State's Ex. A-1.) That gun additionally did no longer fire the deadly bullet recovered from Owusu's frame. (Tr. at 317, 320; State's Ex. S-1.) Appiah became the most effective witness (out of 19 State's witnesses) who testified that he noticed Oteng shoot Owusu. (Tr. at 375-76.) Appiah admitted that he to begin with lied to the police about whether he possessed and fired a gun on the night time of the taking pictures. (Tr. at 394-ninety seven.) He explained that he lied due to the fact he become on probation. (Tr. at 396-97.) Although Appiah testified that Oteng become standing squarely in front of Owusu when Oteng fired, the coroner testified that Owusu become shot in the shoulder from the proper side at a barely downward perspective. (Tr. at 416-20, 469-70.) The coroner defined that the bullet handed thru the proper shoulder at a downward angle into the proper pleural hollow space, handed proper to left through the 5th thoracic vertebra inflicting a weigh down injury to the spinal wire, then punctured the left lung, and came to rest within the left pleural area. (Tr. at 449-50, Autopsy Report at 2, delivered as part of State's Ex. P.) Basoah, Boayke, and Appiah had been all tested for gunshot residue ("GSR") the night of the shooting and all 3 tested high-quality. (Tr. at 76-77, 104-05, 745-47; State's Ex. R-1.) Testimony mounted that Oteng fled straight away in his BMW and the BMW become recovered the following day. (Tr. at 151, a hundred and sixty-63, 389.) But even though testimony also hooked up that GSR No. 19AP-763 5 could have been transferred to the car by means of Oteng's contact and even though testimony of an professional advised that it might have lingered within the car till the auto become cleaned or driven with the home windows down, the BMW turned into now not examined for GSR. (Tr. at 151, 160-63, 752-fifty five, 788.) Oteng's clothing changed into tested and examined poor for GSR. (Tr. at 762; State's Ex. R-2.) Other than Appiah, five lay witnesses testified about the occasions on the nighttime Owusu become shot. One witness testified that he heard the capturing but did now not see it. (Tr. at 192-ninety three.) He stated that he placed on his glasses and looked out of his van after he heard the pictures. Id. He noticed a person with a gun kicking someone mendacity at the ground however defined that he could not perceive every body because it become too darkish. Id. Another witness, who noticed the war of words from approximately 12 ft away, testified that Oteng changed into the only kicking Owusu in the head as Owusu lay prostrate. (Tr. at 255-56, 274.) But that identical witness testified that she saw both of Oteng's hands throughout and after the kicking and he was now not maintaining a gun. (Tr. at 276-seventy eight, 280-eighty two.) Another witness testified that both Oteng and Appiah shot their weapons before Owusu changed into shot and that she did now not understand who shot Owusu. (Tr. at 553, 570.) A final witness indicated she changed into inside when the capturing came about and did not see any pictures fired. (Tr. at 638-39.) She indicated that a person she knew as "Daniel" or "DJ" screamed to Oteng, "you shot him, get inside the automobile." (Tr. at 644, 647-48.) However, she admitted whilst she became to start with interviewed by the police within the aftermath of the taking pictures, she informed the police as a minimum four times that Basoah become the most effective one who were taking pictures a gun and she or he did no longer point out DJ's alleged exclamation. (Tr. at 697-ninety eight, 724-29.) A final witness testified that he had warned Oteng no longer to go to the birthday celebration due to the fact he knew Oteng and Owusu had been not on excellent phrases. (Tr. at 813-14.) He stated Oteng telephoned him at 2 a.m. on the night of the capturing and said that he had "shot him," which the witness assumed supposed that Oteng became confessing to having shot Owusu. (Tr. at 816-18.) The witness went on to testify, but, that once he noticed Oteng in person the following nighttime, Oteng asserted that a number of human beings had been capturing at the birthday party and that he did not shoot Owusu. (Tr. at 821-23, 833.) On April 24, 2014, a jury found Oteng guilty of all counts. (Apr. 24, 2014 Verdict Forms.) During a May sentencing listening to, the trial court docket merged the two murder and felony murder counts and sentenced Oteng to serve 15 years to life for homicide plus 3 consecutive years for the firearm specification, No. 19AP-763 6 for a total sentence of 18 years to lifestyles in prison. (Tr. at 988, 990; May 14, 2014 Jgmt. Entry at 2.) State v. Oteng, tenth Dist. No. 18AP-fifty eight, 2018-Ohio-3138, ¶ 4-8 ("Oteng II"). ¶ 6 In his direct enchantment, Oteng raised ten assignments of mistakes. Oteng I at ¶ 12. Among other arguments, Oteng maintained that his trial recommend had accomplished ineffectively due to a failure to review sure jail calls, failure to insist at the employment of an interpreter to translate prison requires the jury, failure to object to rumour testimony, and failure to object to improper feedback and questions by way of the prosecutor. Id. at ¶ 8692. On March 31, 2015, a panel of this Court overruled all his assignments of mistakes, together with the ineffective help of counsel arguments, and affirmed the conviction. Id. in passim. ¶ 7 After litigation of a motion for a new trial and an attempted appeal to the Supreme Court of Ohio, Oteng filed a postconviction petition and amended postconviction petition (together with a movement for leave to amend) looking for to vacate or set apart the conviction. (Aug. 17, 2017 Postconviction Petition; Jan. three, 2018 Am. Petition, connected to Jan. 3, 2018 Mot. for Leave.) In these files, Oteng asserted a unmarried declare, that he become deprived of his proper to warfare-loose recommend when his trial suggest, Javier Armengau, represented him in spite of an undisclosed conflict of interest and whilst Armengau failed to call witnesses vital to his protection. Specifically, Oteng argued that because Armengau have been indicted for several extreme offenses,1 Armengau would no longer have wanted to protect Oteng vigorously because of a preference to curry favor with the State. (Aug. 17, 2017 Postconviction Petition.) Oteng additionally argued that Armengau failed to name an exonerating witness and connected the affidavit of Seth Mensah in which Mensah swore that he in my opinion witnessed the capturing. (Mensah Aff., Ex. D., connected to Jan. 3, 2018 Am. Petition.) Mensah averred that "[t]he man or woman who shot Mr. Owusu turned into no longer Dennis Oteng. I did now not even see Mr. Oteng with a firearm." Id. Mensah said that the shootout changed into among "G-Money [Basoah] and Ben Appiah" and that Oteng become within the Filipino Center while the taking pictures happened. Id. Mensah similarly averred that he told the police this information and that he had attempted to contact Armengau but his touch attempts had long past unanswered. Id. 1 Armengau was indicted in Franklin County in May 2013 for 3 counts of kidnapping, one remember of public indecency, three counts of gross sexual imposition, six counts of rape with specs, and five counts of sexual battery. (Ex. A, connected to Aug. 17, 2017 Postconviction Petition.) No. 19AP-763 7 ¶ eight The trial courtroom denied Oteng's initial petition with out a hearing and did not point out or explicitly rule on his movement to amend his petition or the amended petition, itself. (Jan. 3, 2018 Decision & Entry.) On an enchantment from that selection, we reversed, modified the trial court's choice to furnish leave to amend, and remanded in order that the trial court docket may want to rethink the problem in light of the amended petition and Mensah's affidavit. Oteng II at ¶ 28. ¶ nine On remand, the trial courtroom issued a briefing agenda at the amended petition and the events briefed the matter. (Sept. 5, 2018 Briefing Schedule; Sept. 10, 2018 State's Memo. Contra; Oct. 3, 2018 Oteng's Reply.) Based at the briefing, the trial court scheduled a listening to. (Feb. five, 2019 Hearing Scheduled.) The trial court endured the listening to once on its very own motion and another time when Mensah didn't seem to testify. (Mar. 7, 2019 Continuance; May 22, 2019 Continuance; June 14, 2019 Hearing Tr. at five, filed Jan. thirteen, 2020.) On the third scheduled date, June 14, 2019, the trial courtroom held an evidentiary listening to on the petition and amended petition for postconviction comfort. (June 14, 2019 Hearing Tr.) ¶ 10 At the outset of the listening to, Oteng's counsel referred to that Mensah had, over again, failed to seem for the hearing. Id. at four. Counsel defined that Mensah's absence became seemingly a deliberate choice via Mensah and that Mensah indicated he had acquired threats from the police. Id. Oteng's lawyer did not request a in addition continuance of the hearing on the report or a warrant to secure Mensah's presence, however did request that the proceeding "be left open" in order that Mensah could provide testimony on every occasion he might be placed. Id. The State denied understanding of any police threats, indicated that the police have been not searching out Mensah and probable had been not even privy to the hearing. Id. at 5. Neither the State nor the court docket expressly addressed on the report Oteng's request that the hearing be "left open." ¶ eleven Two witnesses ultimately testified inside the hearing. The first to testify changed into Oteng. Oteng testified that he hired his trial suggest, Javier Armengau, in 2013 and that Armengau did no longer disclose that he was underneath indictment. (June 14, 2019 Hearing Tr. at 9.) Oteng stated that, had he been aware about Armengau's felony state of affairs, he might no longer have employed him. Id. at nine-10. He explained that no longer till after the trial changed into concluded, did he turn out to be aware about Armengau's personal felony problems and start to apprehend, in hindsight, that he No. 19AP-763 eight had now not been represented properly. Id. at 13-14. Specifically, he testified that Armengau was ineffective in failing to observe up on Mensah's attempts to touch recommend and in failing to call Mensah as a witness at trial. Id. at 19-21. He additionally brought that Armengau made the incorrect decision in the course of trial to chorus from calling Oteng's lady friend as a witness and that, had she been referred to as, she could have testified that Oteng had not possessed a gun. Id. at 21-23. However, Oteng also admitted that Armengau pass-tested the State's witnesses against him and efficiently proved that the witnesses had modified their stories about what came about. Id. at sixteen-17. Oteng additionally admitted he turned into unaware that Armengau have been prosecuted through the Ohio Lawyer General's Office instead of the Franklin County Prosecutor's Office. Id. at 12. ¶ 12 The second and final witness to testify turned into the lead prosecutor in Oteng's trial. Id. at 24-25. The prosecutor testified that he provided each an audio recording of a statement given via Mensah and an informational summary prepared by means of the interviewing officer to Oteng's counsel in discovery. Id. at 25-26. Both recording and precis had been brought as reveals on the hearing. (State's Exs. A-A1.) In the recorded declaration, Mensah explained that he become on the party for 40 mins earlier than it became shut down (due to the shooting). (State's Ex. A1 at 5:10-five:15, 6:forty five-6:59.) Mensah said he was inside the birthday party and heard the shots but did not realize who fired shots. Id. at five:05-5:forty two. He stated that he noticed Oteng at the party, however that they had been in exclusive places and he and Oteng did not engage that evening. Id. at 7:00-7:22. At a few factor, Oteng left and Mensah did not see him after that point. Id. at 7:00-7:12. The prosecutor admitted that he did no longer recognise if Mensah and Armengau had communicated. (June 14, 2019 Hearing Tr. at 31-32.) However, the prosecutor stated that it was his remark that Armengau appeared to were "on his game" in the course of the trial and did an amazing process. Id. at 29-30. ¶ thirteen On October eight, 2019, the trial courtroom issued a decision denying the petition and amended petition for postconviction remedy at the deserves. (Oct. 8, 2019 Entry.) In its decision, the trial court docket mentioned that the hearing were endured once because of Mensah's failure to seem and that Oteng's suggest had requested a continuance of the June 14, 2019 listening to whilst Mensah once more didn't seem. Id. at 2. The trial court referred to the lack of indication that Mensah were subpoenaed in denying the continuance and proceeding in Mensah's absence. Id. The trial court docket in its selection recounted the evidence presented No. 19AP-763 nine within the listening to and concluded that the proof did now not display that Armengau supplied useless help to Oteng such that his Sixth Amendment right to suggest might have been violated. Id. at 2-7. It therefore denied the petition (and the amended petition) on their merits. Id. at 7. ¶ 14 Oteng now appeals. II. ASSIGNMENTS OF ERROR ¶ 15 Oteng alleges three assignments of error for assessment: [1.] The trial court abused its discretion while it denied Petitioner-Appellant Dennis Oteng's post-conviction petition on insufficient findings on useless help of recommend and a conflict of hobby against Lawyer Javier Armengau in violation of the Fifth, Sixth, and Fourteenth Amendment to the U.S. Constitution and Art. 1 Sec. 10 of the Ohio Constitution. [2.] The trial court docket abused its discretion while it denied Petitioner-Appellant Dennis Oteng's put up-conviction petition after sufficient evidence become submitted at an evidentiary listening to of Lawyer Javier Armengau infectiveness and a displaying of a war of hobby which warranted the conviction to be vacated. [3.] The trial court docket abused its discretion whilst the court docket over protection recommend's objection allowed the State prosecutor's workplace to call an assistant prosecutor to testify at the evidentiary hearing in violation of Ohio Prof. Cond. Rule 3.7. We deal with the third undertaking of mistakes first, resolving the problem of the evidence before the trial court before reviewing its conclusions on the evidence. III. DISCUSSION A. Third Assignment of Error - Whether the Trial Court Abused its Discretion in Permitting the Lead Prosecutor inside the Trial to Testify ¶ 16 "Generally, '[t]he admission of evidence is within the discretion of the trial courtroom.' " Shaw v. Underwood, 10th Dist. No. 16AP-605, 2017-Ohio-845, ¶ 25, quoting Brown v. Dept. of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 36, mentioning Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 38. Thus, the decision to admit or exclude proof is reviewed for abuse of discretion. Underwood at ¶ 25. Yet, "[a]lthough an abuse of discretion is typically described as an unreasonable, arbitrary, or unconscionable selection, we word that no courtroom has the authority, within its discretion, to commit an error of regulation." (Citations left out.) State v. Chandler, tenth Dist. No. 19AP-763 10 No. 13AP-452, 2013-Ohio-4671, ¶ eight; see also JPMorgan Chase Bank, N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 18. "We therefore evaluate the selection of the trial courtroom for abuse of discretion with the information that if the trial courtroom erred on a query of law, despite admire to an evidentiary issue, that such is an abuse of discretion." Pontius v. Riverside Radiology & Interventional Assocs., 10th Dist. No. 15AP906, 2016-Ohio-1515, ¶ 15. ¶ 17 Oteng argues that the trial court abused its discretion in allowing the lead prosecutor in his trial to testify throughout the postconviction hearing on the topic of Armengau's efficacy. (Oteng's Brief at 19-22.) Specifically, he argues that the trial courtroom erred in that it permitted the lawyer to violate Ohio Rule of Professional Conduct three.7. Id. ¶ 18 Rule 3.7(c) affords, "[a] government attorney taking part in a case shall now not testify or provide the testimony of any other lawyer within the identical authorities agency, besides in which division (a) applies or where authorized via law." Division (a) of the rule states: (a) A lawyer shall now not act as an advise at an ordeal in which the legal professional is probably to be a important witness until one or extra of the subsequent applies: (1) the testimony relates to an uncontested trouble; (2) the testimony relates to the character and value of criminal offerings rendered inside the case; (3) the disqualification of the legal professional could work extensive worry at the customer. (Emphasis sic.) Prof.Cond.R. three.7(a). In this example, a central authority legal professional (with the Franklin County Prosecutor's Office) defending the State in Oteng's postconviction hearing offered the testimony of any other government lawyer within the identical authorities enterprise. Prof.Cond.R. three.7(c). ¶ 19 The Rules of Professional Conduct aren't regulations of evidence and the authority to govern the bar and adjudicate violations of such rules lies totally with the Supreme Court of Ohio. State ex rel. Buck v. Maloney, 102 Ohio St.3d 250, 2004-Ohio-2590, ¶ 7-eight. Exclusion is from time to time a proper consideration while, for instance, problems of privilege or paintings product are raised (which also can implicate the rules of conduct). See typically Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010Ohio-4469. But we've got no longer located any precedent for the proposition that a contravention of the No. 19AP-763 11 rule at difficulty in this case must result in an order of exclusion on enchantment. In truth, out-ofdistrict precedent is to the alternative impact. See State v. White, 4th Dist. No. 19CA715, 2019Ohio-4562, ¶ 32-33. ¶ 20 This state of affairs implicates a circumstance in which an employer (in this example, the Franklin County Prosecutor's Office) is both an endorse for its function and the substantive witness in prefer of that function. See Prof.Cond.R. three.7, comments [2]-[5]. However, the testimony presented right here related to the character of felony offerings rendered by means of opposing counsel within the trial that turned into at issue inside the postconviction hearing. Prof.Cond.R. three.7(a)(2). The comments to Rule 3.7 make clear that one of the critical considerations underlying the rule is the avoidance of bewilderment for the factfinder. Prof.Cond.R. 3.7, feedback. The testimony at trouble changed into supplied at a postconviction hearing before the trial courtroom in assist of the expert competence of protection counsel at some point of the underlying trial, commensurately reducing the importance of this witness’s testimony. ¶ 21 We note that the equal factfinder on postconviction relief, the trial courtroom, additionally had the opportunity to take a look at and examine Oteng's recommend's overall performance during the trial. For the purpose of averting confusion for the factfinder, we discover little to no probability of misunderstanding in these occasions. ¶ 22 While we do now not render a judgment on any alleged violation of Prof.Cond.R. 3.7(a)(2), based totally on the rule's purpose and the proof inside the record, we discover no reversible blunders inside the trial courtroom's allowing the lead trial recommend for the State at trial to testify at the listening to on Oteng's motion for postconviction comfort about his defense recommend's performance at trial. Thus, we overrule Oteng's 1/3 task of mistakes. B. First and Second Assignment of Error - Whether the Trial Court Erred in Failing to Find that Armengau became Ineffective Due to a Conflict of Interest ¶ 23 The Ohio Revised Code provides: Any man or woman who has been convicted of against the law * * * and who claims that there was one of these denial or infringement of the individual's rights as to render the judgment void or voidable underneath the Ohio Constitution or the Constitution of the US * * * may additionally document a petition in the court that imposed sentence, pointing out the grounds for alleviation relied upon, and asking the courtroom to vacate or set aside the judgment or sentence or to supply other appropriate comfort. No. 19AP-763 12 R.C. 2953.21(A)(1)(a). This postconviction alleviation process is a collateral civil assault on a criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). "It is a method to attain constitutional troubles which might otherwise be not possible to attain due to the fact the proof assisting the ones troubles isn't contained" in the trial courtroom document. State v. Murphy, 10th Dist. No. 00AP-233, 2000 WL 1877526, 2000 Ohio App. LEXIS 6129, *5 (Dec. 26, 2000); see additionally, e.g., State v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15. "If the court docket does no longer locate grounds for granting alleviation, it shall make and document findings of fact and conclusions of regulation and shall enter judgment denying relief at the petition." R.C. 2953.21(H). "If * * * the court docket reveals grounds for alleviation * * * it shall make and document findings of truth and conclusions of regulation and shall enter a judgment that vacates and sets aside the judgment in question, and, within the case of a petitioner who's a prisoner in custody, shall discharge or resentence the petitioner or provide a brand new trial as the courtroom determines appropriate." Id. ¶ 24 Because the trial court docket is within the excellent function to view and weigh testimony, whilst we don't forget an ordeal courtroom's determinations primarily based on evidence obtained at some point of a postconviction hearing, we defer to the trial courtroom's findings and follow an abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 46-fifty eight. Thus, we have to now not reverse a discretionary finding following a hearing if it is supported by equipped, credible proof. Id. at ¶ 58. Yet, as ever, "we notice that no court docket has the authority, inside its discretion, to dedicate an error of regulation." (Citations omitted.) Chandler, 2013-Ohio-4671, at ¶ eight; see also Liggins, 2016-Ohio-3528, at ¶ 18. ¶ 25 In this case, the constitutional right Oteng claims became violated changed into his right to suggest underneath the Sixth Amendment to the U.S. Constitution. (Oteng's Brief at five-18.) Specifically, he argues that despite the fact that he had recommend, his lawyer (Armengau) had a warfare of hobby that rendered him useless. Id. ¶ 26 In instances involving the illustration of more than one defendants, the Supreme Court has stated, "[w]right here there may be a proper to counsel, the Sixth Amendment to the US Constitution also guarantees that representation can be free from conflicts of hobby." State v. Dillon, seventy four Ohio St.3d 166, 167 (1995), citing State v. Gillard, sixty four Ohio St.3d 304, 312 (1992). Relying on United States Supreme Court precedent, this Court has previously held: No. 19AP-763 13 "* * * Prejudice is presumed while recommend is stressed through an actual warfare of hobby. * * * Given the duty of counsel to avoid conflicts of hobby and the capacity of trial courts to make early inquiry in certain situations possibly to give upward thrust to conflicts * * * it is reasonable for the crook justice gadget to preserve a fairly rigid rule of presumed prejudice for conflicts of interest. * * * Prejudice is presumed handiest if the defendant demonstrates that recommend 'actively represented conflicting pastimes' and that 'an actual battle of hobby adversely affected his legal professional's overall performance.' * * *" State v. Foster, tenth Dist. No. 90AP-05, 1990 WL 174008, 1990 Ohio App. LEXIS 4911, *910 (Nov. 6, 1990), quoting Strickland v. Washington, 466 U.S. 668, 692 (1984). More currently, the Supreme Court of Ohio has defined, "[i]n order to meet a Sixth Amendment declare of ineffective assistance of counsel," based totally on a warfare of hobby, a defendant "have to demonstrate that an actual conflict of interest adversely affected his counsel's actual performance." State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, ¶ 102; see additionally Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). ¶ 27 Though Oteng relies at the concepts worried in those instances, his argument is fairly specific. (Oteng's Brief at 6.) He argues that, although Armengau was no longer engaged in representing every other defendant whose hobbies were against Oteng's, Armengau's personal prison problems have been such that a struggle arose. Id. at 6-13. That is, "Oteng [has] argued that because Armengau were indicted for numerous serious offenses, Armengau could no longer have needed to shield Oteng vigorously due to a choice to curry want with the State." Oteng II at ¶ 10. ¶ 28 A pending criminal or ethical case in opposition to a protection attorney with the aid of the same prosecutor's office or inside the same jurisdiction as the attorney's purchaser's case, below positive instances can create a warfare of hobby. See, e.g., State v. Dean, 127 Ohio St.3d one hundred forty, 2010-Ohio-5070, ¶ 21-23, 71; United States v. De Falco, 644 F.second 132, 133-36 (3d Cir.1979). As the Third Circuit positioned it in De Falco: The adversary device of the common law, as outstanding from the inquisitorial system of the civil regulation, is regarded inside the Anglo-American tradition because the best technique of arriving at the fact whilst information are disputed, and for discerning the right felony precepts to be applied to those statistics. These desires are to be done by way of the healthful and forceful presentation of partisan viewpoints. Although the final choice is usually the responsibility of the jury and the decide, our gadget can prosper No. 19AP-763 14 best while legal professionals, as officials of the court, are able to develop the fullest dimensions of the cause being heard. "[The lawyer's] essential obligation is to serve the undivided hobbies of his consumer. Indeed, an integral detail of the effective overall performance of his responsibilities is the capability to act independently of the government and to oppose it in adversary litigation." Ferri v. Ackerman, 444 U.S. 193, 204, * * * (December four, 1979). If there may be any constraint on counsel's whole and exuberant presentation, our system will fail because the primary factor of the adversary device will be lacking. The essence of the gadget is that there be expert antagonists within the felony discussion board, dynamic disputants prepared to do combat for the reason of aiding the court docket in its quest to do justice. Therefore, if any situation impedes the unqualified participation by way of an attorney, the adjudicatory characteristic is inhibited, in the long run threatening the object of that function, justice within the motive to hand. De Falco at 136. The Third Circuit defined why a pending crook prosecution against an propose with the aid of his adversary from time to time should disrupt that process: It is vital that the propose owe no fealty that conflicts, or maybe appears to war, with the paramount ethical loyalty he owes his consumer. The capable endorse should stand tall * * * and assert his [or her] client's contentions with out worry or want. This isn't the posture a defendant in a crook case assumes as he is going, hat in hand, to barter a plea good deal together with his adversary. Nor is it the posture a defendant assumes as he appears earlier than the trial court docket following a plea of guilty to beg the mercy of the courtroom before sentence is mentioned. Id. ¶ 29 From the report of Oteng's postconviction listening to it's far clean that Armengau turned into prosecuted through the Ohio Lawyer General's Office instead of the Franklin County Prosecutor. (June 14, 2019 Hearing Tr. at 12.) We be aware that, no matter the office or identify of the legal consultant, the birthday party pressing prosecution and whose pursuits were sought to be vindicated by the prosecution, turned into the State—the same celebration that become pursuing the prosecution of Oteng. State v. Oteng, Franklin C.P. No. 13CR-224; State v. Armengau, Franklin C.P. No. 13CR-2217. Moreover, the jurisdiction and venue of each prosecutions (Franklin County Common Pleas Court) became the same. In other words, Armengau changed into concurrently litigating in opposition to the State in Franklin County on behalf of Oteng at the same time as being prosecuted with the aid of the State in Franklin County for multiple extreme felonies. Thus, it No. 19AP-763 15 could be feasible to argue that Armengau could have skilled a divided loyalty among his obligation to vigorously constitute his consumer in opposition to the State and his private desire to keep away from antagonizing either the courtroom (that could behavior his trial and sentence him) or the State (which sought to convict and imprison him). It is likewise undisputed, based totally on the proof supplied throughout the hearing, that Oteng changed into no longer made privy to the viable warfare until after the illustration became concluded. (June 14, 2019 Hearing Tr. at nine-14.) ¶ 30 We want not reach that dedication, but, because Oteng couldn't prevail in his Sixth Amendment argument except he additionally mounted that the actual battle "adversely affected his recommend's real overall performance." Jackson, 2016-Ohio-5488, at ¶ 102; see additionally Cuyler, 446 U.S. at 348-50. Finding no abuse of discretion, we accept as true with the trial court's dedication that Oteng failed to meet this burden. (Oct. eight, 2019 Entry at 4-7.) In the course of this enchantment and prior appeals in this example, we've got conducted a thorough evaluation of the trial transcript, and we find no testimony or findings of the trial judge that would show the trial court docket abused its discretion in finding that Armengau achieved effectively in Oteng's trial. Id.; June 14, 2019 Hearing Tr. at 29-30. Even Oteng admitted that Armengau go-examined and controlled to prove that each of the State's witnesses had altered their memories and had basically lied. (June 14, 2019 Hearing Tr. at 16-17.) ¶ 31 Notwithstanding the proof of Armengau's typically proper performance at trial, the facts stated by means of Mensah in his affidavit if credited should lead to a special end on Armengau's representation in that Mensah asserts that he became a doubtlessly exonerating witness whom Armengau neglected. (Mensah Aff., Ex. D., attached to Jan. 3, 2018 Am. Petition.) That is, Mensah in his affidavit asserts that he observed the shooting, could pick out the shooters, should exonerate Oteng, formerly related all of this to police, and tried to narrate it to Oteng's recommend: On January 5, 2013, I become at the Filipino Center on Westerville Road in Columbus, Ohio and found Kingsley Owusu being shot and killed inside the parking lot. The individual who shot Mr. Owusu became not Dennis Oteng. I did no longer even see Mr. Oteng with a firearm. The men chargeable for capturing Mr. Owusu were two men I knew as G-Money and Ben Appiah. They both arrived with Mr. Owusu and had a shootout with other people at the Filipino Center. Mr. Oteng was inside the Center when the shooting came about. * * * No. 19AP-763 sixteen After listening to that Mr. Oteng become charged with the crime, I tried to touch his attorney, Javier Armengau, and relay the facts I knew about the taking pictures. However, Mr. Armengau by no means returned my messages. I also instructed police detectives this records. (Mensah Aff., Ex. D., attached to Jan. three, 2018 Am. Petition.) However, Mensah's recorded assertion, acquired near the time of the capturing, contradicts a lot of his assertions via affidavit. The recorded statement exhibits that Mensah told the police that he became within the birthday celebration and consequently most effective heard, however did no longer see, the capturing, and did not realize who the shooter became. (State's Ex. A1 at five:05-5:42.) The recording also suggests that Mensah admitted that he noticed Oteng at the party, however did now not interact with him after which saw him depart. Id. at 7:00-7:22. While that recorded statement does not present such records that could make Oteng's innocence impossible, it stands in sharp assessment the absolutely exonerating assertions of Mensah's later affidavit. ¶ 32 Rather than seem and provide proof on the postconviction hearing to resolve this struggle and support the claims made inside the affidavit, Mensah twice did not appear. (June 14, 2019 Hearing Tr. at 4-five.) The trial courtroom additionally mentioned that, as soon as the hearing became scheduled, Oteng should have subpoenaed Mensah for the listening to below Civ.R. 45 to require his presence. (Oct. eight, 2019 Entry at 2.) Oteng did no longer try this. Nor turned into evidence past an inadmissible announcement by means of recommend offered to expose that Mensah have been intimidated by way of law enforcement into keeping off the hearing. Id.; June 14, 2019 Hearing Tr. at four-5, in passim. Given what turned into earlier than the trial court docket: Mensah's conflicting counts of the events that caused the death of the sufferer, Kingsley Owusu, and the reality that Mensah did now not seem to testify to resolve the struggle and permit the trial court docket to decide his credibility, we do no longer locate an abuse of discretion within the trial court's ruling that Oteng had now not proven Armengau's overall performance turned into adversely affected. ¶ 33 Oteng additionally seems to argue that the trial court acted improperly in failing to hold the listening to to permit Mensah the opportunity to appear or to allow the protection the opportunity to show that Mensah was being intimidated with the aid of the police. (Oteng's Brief at 1516.) The listening to had already been persevered as soon as for the motive of allowing Mensah to seem and the docket does now not mirror that any strive become made to subpoena Mensah for the second hearing or take different legal steps to ensure his presence. (June 14, 2019 Hearing No. 19AP-763 17 Tr. at four-five; Docket in Franklin C.P. No. 13CR-224.) Under the instances, the trial court docket well acted inside its discretion in proceeding with the listening to. ¶ 34 We overrule Oteng's 2nd and 0.33 assignments of error. IV. CONCLUSION ¶ 35 The trial court docket did not abuse its discretion in permitting an assistant prosecutor to testify at a listening to on Oteng's postconviction petition or in preserving the listening to in the absence of a key witness where the document suggests that witness changed into deliberately absent, wherein the listening to had already been continued as soon as due to this witness' absence, and in which no steps were taken to subpoena or in any other case compel this witness' presence, consequently denying the trial court docket the possibility on postconviction evaluate to look and pay attention the live testimony of the witness that allows you to remedy the apparent disparity between his recorded announcement taken quickly after the capturing and his later-created affidavit and to judge his credibility. The trial court docket did no longer devote reversible mistakes in locating that Oteng had did not set up that his suggest's performance become unconstitutionally deficient. We verify the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. NELSON, J., concurs. SADLER, P.J., has the same opinion in judgment most effective.