State v. Shaw , 2016 Ohio 7699 ( 2016 )

[Cite as State v. Shaw, 2016-Ohio-7699.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1165
Appellee Trial Court No. CR0201402968
v.
Cletissia Shaw DECISION AND JUDGMENT
Appellant Decided: November 10, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Rebecca A. Facey, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
JENSEN, P.J.
{¶ 1} Following a jury trial, defendant-appellant, Cletissia Shaw, appeals the
May 18, 2015 judgment of the Lucas County Court of Common Pleas, convicting her of
obstructing justice. For the reasons that follow, we affirm.
A. Background
{¶ 2} On September 25, 2014, Dennis Davis was charged in a 24-count indictment
with rape, unlawful sexual conduct with a minor, and the sexual battery of numerous
children. A warrant was issued for his arrest. Because of the nature of his crimes, Davis’
apprehension quickly became a priority of the Northwest Ohio Violent Fugitive Task
Force. It gathered information to locate Davis and learned that he was engaged to
Cletissia Shaw.
{¶ 3} Two deputy U.S. marshals went to Shaw’s home to speak with her. They
knocked on her door and after about five minutes, she answered. Shaw confirmed that
Davis was her fiancé and that she was aware of the charges against him, but she claimed
she had not seen or heard from him since learning that the indictment and arrest warrant
had been issued. The deputy marshals asked if they could look around her house, and she
consented. They did not find Davis. Before leaving, they warned Shaw that if she was
being untruthful or did anything to inhibit their investigation, she would be charged with
obstructing justice. She responded “well, you got to do what you got to do.”
{¶ 4} On December 9, 2014, the full task force—consisting of deputy marshals,
Lucas County deputy sheriffs, officers from the Department of Homeland Security, and
Toledo police officers—went to Shaw’s home. Again, they knocked, and again it took
approximately five minutes for her to answer. She asked what they were doing there and
insisted that Davis was not there. She consented to another search of her home.
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{¶ 5} With the full task team present, a more thorough search was conducted. The
task force team split up and searched the entire house. Two members of the team
searched a bedroom filled with trash bags, piles of clothing, and storage containers. They
came across a blue storage container with a box on top of it. One of the task force
members set aside the box and pried the lid off the container. He found Davis inside,
naked, holding a gun to his head. The situation became chaotic, but Davis ultimately was
apprehended. Shaw was charged with obstructing justice, a violation of R.C.
2921.32(A)(1) and (C)(4).
{¶ 6} Following a jury trial, Shaw was convicted. She was sentenced to three
years’ community control. She appealed and assigns the following errors for our review:
I. Appellant received ineffective assistance of counsel in violation
of her rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 10 of the Constitution of the State
of Ohio.
II. The jury’s verdict was against the manifest weight of the
evidence introduced by the state at trial.
B. Law and Analysis
{¶ 7} In her first assignment of error, Shaw argues that her trial counsel was
ineffective because he failed to object to the state’s opening statement and to various
witnesses’ testimony about the details of the charges against Davis. In her second
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assignment of error, she contends that the jury’s verdict was against the manifest weight
of the evidence. We address Shaw’s assignments of error out of order.
1. Manifest Weight of the Evidence
{¶ 8} In her second assignment of error, Shaw argues that there was no credible
evidence that she assisted Davis in hiding in her home or that she obstructed his
apprehension. She claims that the jury did not consider all of the evidence. In support of
this argument, she points out that she consented to two separate searches of her home.
{¶ 9} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78
Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light
most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the
factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas
No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs
heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 10} Although under a manifest-weight standard we consider the credibility of
witnesses, we must nonetheless extend special deference to the jury’s credibility
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determinations given that it is the jury who has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.
{¶ 11} R.C. 2921.32(A)(1) provides that “No person, with purpose to hinder the
discovery, apprehension, prosecution, conviction, or punishment of another for crime
* * *, with purpose to hinder the discovery, apprehension, [or] prosecution, * * * shall
* * * [h]arbor or conceal the other person * * *.” R.C. 2921.32(C)(4) further provides
that “if the crime committed by the person aided is aggravated murder, murder, or a
felony of the first or second degree * * * and if the offender knows or has reason to
believe that the crime committed by the person aided is one of those offenses * * *,
obstructing justice is a felony of the third degree.”
{¶ 12} Here, Davis was charged with rape, a first-degree felony, and Shaw was
aware of this. She falsely denied that Davis was in her home, and Davis was found
hiding in a storage container that had a lid that snapped shut. The lid did not have a
mechanism to close it from the inside, and a box was stacked on top of it. Deportation
Officer Michael Dietz described:
And when I tried to pull it the bin was snapped on so you couldn’t
just pull it in the middle. * * * There was a small box also on top of the
tote, so I had to knock the box off, but it was one of those totes where it
kind of snaps on the ends, you know. And so I reached to the front with my
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left hand, and as I was popping it up, pulling it back my way, Officer
Korsog shouts out, he’s got a gun.
{¶ 13} Sergeant Kevin Korsog, of the Toledo police department, confirmed this.
He testified that Officer Dietz “actually had to shift and then actually pull up to unseal it.
And, again, there was an item on top of it * * *.” He confirmed, “there wasn’t, like, a
handle underneath the lid that he could have popped it himself.”
{¶ 14} While Davis and Shaw both denied that Shaw helped to conceal Davis in
the storage bin, Shaw confirmed that she and Davis were alone in the house. We find
that the jury had before it strong evidence that Shaw falsely denied that Davis was with
her and that Shaw helped Davis hide from law enforcement for the purpose of hindering
his apprehension. We, therefore, conclude that the jury’s verdict is supported by the
evidence, and we find Shaw’s second assignment of error not well-taken.
2. Ineffective Assistance of Counsel
{¶ 15} In her first assignment of error, Shaw argues that trial counsel was
ineffective because he failed to object to the state’s opening statement and to portions of
the witnesses’ testimony describing the nature of the offenses committed by Davis.
{¶ 16} In order to prevail on a claim of ineffective assistance of counsel, an
appellant must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
result. State v. Shuttlesworth, 104 Ohio App. 3d 281, 287, 661 N.E.2d 817 (7th
Dist.1995). To establish ineffective assistance of counsel, an appellant must show
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“(1) deficient performance of counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability
that, but for counsel’s errors, the proceeding’s result would have been different.” State v.
Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Sanders, 94 Ohio St. 3d 150, 151, 761 N.E.2d 18 (2002).
{¶ 17} Properly licensed Ohio lawyers are presumed competent. State v. Banks,
9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. To establish ineffective
assistance of counsel, the defendant must show that counsel’s performance fell below an
objective standard of reasonableness and that the deficient performance prejudiced the
defendant so as to deprive him of a fair trial. Strickland at 688-692. As recognized in
Strickland, there are “countless ways to provide effective assistance in any given case.”
Id. at 689. “Judicial scrutiny of counsel’s performance must be highly deferential.” State
v. Bradley, 42 Ohio St. 3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689.
{¶ 18} Shaw explains that the state, in its opening statement, told the jury that
Davis had raped his biological daughter, the friends of his daughter, and the daughters of
his ex-girlfriends. It also informed the jury that the victims were between five and 14
years old, and that Davis was indicted on 24 counts. Shaw points out that before the state
began questioning its first witness, counsel approached the bench and argued that the
details of the underlying charges against Davis were not relevant and were prejudicial.
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The trial court agreed with him, but declined to rule on the objection until it heard
evidence. The state began its questioning and elicited from its witness, and from
subsequent witnesses, that Davis had been indicted on 24 counts of sexually-related
offenses. The indictment and judgment entry were admitted into evidence without
objection by defense counsel. Shaw contends that the details of Davis’ crimes were not
relevant and were highly prejudicial. She insists that the trial court conveyed its
willingness to sustain objections to such evidence, but counsel failed to object.
{¶ 19} “The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel. To prevail on such a claim, a defendant must first show
that there was a substantial violation of any of defense counsel’s essential duties to his
client and, second, that he was materially prejudiced by counsel’s ineffectiveness.” State
v. Holloway, 38 Ohio St. 3d 239, 244, 527 N.E.2d 831 (1988).
{¶ 20} Here, while an objection may have been warranted during the state’s
opening statement, the jury was properly instructed that the opening statement is not
evidence. With respect to the witnesses testifying as to the number of counts contained in
the indictment and the failure to object to the admission into evidence of the indictment
and judgment entry, we find that any purported error did not materially prejudice Shaw or
affect the outcome of the trial given the strength of the state’s case against Shaw. As we
observed in the previous section, Davis was found in Shaw’s home hiding in a storage
container that could only be snapped shut from the outside and on which a box had been
placed. We find that it is not reasonably probable that the jury would have reached a
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different result if counsel had succeeded in preventing all mention of the circumstances
underlying the task force’s search for Davis.
{¶ 21} We find Shaw’s first assignment of error not well-taken.
C. Conclusion
{¶ 22} We find Shaw’s two assignments of error not well-taken and affirm the
May 18, 2015 judgment of the Lucas County Court of Common Pleas. Shaw is ordered
to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
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