State v. Vicario , 2018 Ohio 4217 ( 2018 )

[Cite as State v. Vicario, 2018-Ohio-4217.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106373
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ERIK J. VICARIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-597651-A
BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: October 18, 2018
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
By: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jennifer A. Driscoll
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Erik J. Vicario (“Vicario”) appeals his convictions and asks
this court to vacate and remand for a new trial. After a review of the record, we affirm.
{¶2} Vicario was found guilty of one count of aggravated murder, a first- degree felony, in
violation of R.C. 2903.01(A); one count of murder, a first-degree felony, in violation of R.C.
2903.02(B); four counts of attempted murder, first- degree felonies, in violation of R.C.
2903.02(A); ten counts of felonious assault, second-degree felonies, in violation of R.C.
2903.11(A)(1) and (2); and one count of having weapons while under disability, a third-degree
felony, in violation of R.C. 2923.13(A)(3). Each count, with the exception of the having weapons
while under disability count, included one- and three-year firearm specifications. After a bench
trial, the trial court sentenced Vicario to an aggregate sentence of 31 years to life imprisonment.
I. Facts
{¶3} On the evening of May 10, 2015, a group of people were having a party in front of an
apartment complex. Tanazha Watson (“Watson”) arrived at the apartment complex and started
speaking with Tyshaun Jenkins (“Jenkins”). Jenkins’s girlfriend, Tunisha Jackson (“Jackson”)
became upset because she thought Watson and Jenkins were flirting. Before Jackson could
approach the couple, Watson left to go to the store with her sister, Dazhanae Dowell (“Dowell”),
Vicario’s girlfriend. Dowell, Watson, and Vicario arrived at the convenient store about a block
away from the apartment complex. Upon their arrival, Dowell and Watson were confronted by
Jackson and her friends over the flirtatious behavior, and a fight ensued. Vicario tried to break
up the fight, but was unable to do so, and the police were called. Once the police arrived, the
fight stopped. The two groups went their separate ways. Tariaha Matthews (“Matthews”), had
gone to the store with Jackson, left with Dowell, and went back to Dowell’s home.
{¶4} Vicario was also at Dowell’s home, expressed that he was upset with the girls that
fought Dowell and Watson, and wanted to exact revenge. Vicario asked Matthews to show him
where they lived so that he could fight them for jumping Dowell. They drove to the apartment
building where Jackson returned to the party, and Matthews showed Vicario where Jackson lived.
Afterwards, Matthews and Vicario returned to Dowell’s home. Ten minutes later, Vicario left
Dowell’s home and went back to the apartment complex, where Vicario fired multiple gun shots
at the group partying outside. Michael Matthews (“M. Matthews”), Matthews’s father, was
killed. Ronald Derrett (“Derrett”), Jackson, Jenkins, and Awilda Carroll were shot. At trial,
Derrett identified Vicario as the person who shot him.
{¶5} Terrance Colvin (“Colvin”) testified that Vicario confessed to him that he killed
Matthews. Colvin also testified that Vicario abused and intimidated everyone that lived in
Dowell’s home, including Dowell. Colvin testified that Vicario expressed remorse for killing M.
Matthews, stating that he was not supposed to die. Dowell testified that Vicario confessed to her,
the morning after the shooting, that he had done something bad. Vicario stated that he shot the
people that were fighting with Dowell.
{¶6} Although initially Dowell did not tell the police the entire story about what happened,
she had a change of heart after seeing Matthews shortly after Dowell’s own mother died. Dowell
felt badly that Vicario killed Matthews’s father. Dowell also testified that she was afraid of
Vicario because she was previously abused by Vicario to the point where she needed to be
hospitalized. Vicario’s trial counsel objected to this testimony and moved for a mistrial. The
state argued that Dowell’s statements were not being used for the truth of the matter asserted, but
rather to explain why Dowell was afraid of Vicario and therefore did not disclose information to
the police. The trial court denied defense counsel’s motion for a mistrial.
{¶7} At the end of the trial, the trial court found Vicario guilty of all counts and sentenced
him to 31 years to life imprisonment. Vicario filed a notice of appeal and assigned four errors
for our review:
I. The verdicts were not supported by the manifest weight of the evidence,
and, therefore, the convictions violated Vicario’s rights to a fair trial and
due process of law as protected by the Sixth and Fourteenth Amendments
to the United States Constitution and Article I, Sections 10 and 16 of the
Ohio Constitution;
II. The trial court violated Vicario’s right to a fair trial and to due process of
law as protected by the Sixth and Fourteenth Amendments to the United
States Constitution and by Article I, Sections 10 and 16 of the Ohio
Constitution when it denied his motion for a mistrial;
III. Prosecutorial misconduct in the presentation of evidence and in closing
argument deprived Vicario of his right to a fair trial and due process of law
as protected by the Sixth and Fourteenth Amendments to the United States
Constitution and by Article I, Sections 10 and 16 of the Ohio Constitution;
and
IV. Vicario’s right to the effective assistance of counsel, guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution and by
Article I, Section 10 of the Ohio Constitution was violated when his counsel
did not object to highly prejudicial and irrelevant testimony at trial and to
highly prejudicial and improper statements by the prosecutor during rebuttal
closing argument and he failed to seek a continuance to allow for finding a
missing witness.
II. Manifest Weight of the Evidence
A. Standard of Review
{¶8} As we have noted before,
a challenge to the manifest weight of the evidence attacks the credibility of the
evidence presented. State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997 Ohio 52, 678
N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine
that a judgment of a trial court is sustained by sufficient evidence, but nevertheless
conclude that the judgment is against the weight of the evidence. Id., citing State v.
Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
State v. Patterson, 2017-Ohio-8318, 99 N.E.3d 970 (8th Dist.), ¶ 15.
{¶9} Therefore when,
[a]nalyzing a claim under the manifest weight standard requires us to “review the
entire record, weigh all of the evidence and all of the reasonable inferences,
consider the credibility of the witnesses, and determine whether, in resolving
conflicts in evidence, the factfinder clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed[.]” Thompkins at 387,
citing State v. Martin, 20 Ohio App. 3d 172, 485 N.E.2d 717 (1st Dist.1983). We
are required to give “due deference” to the factfinder’s conclusions because “the
demeanor of witnesses, the manner of their responses, and many other factors
observable by [the factfinder] * * * simply are not available to an appellate court
on review.” State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶
58, citing Thompkins; State v. Bailey, 8th Dist. Cuyahoga No. 97754,
2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18,
1990 Ohio App. LEXIS 1204 (Mar. 4, 1990). “Further, * * * [we] must keep in
mind that questions of weight and credibility are primarily for the trier of fact to
determine.” State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶
39, citing State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967).
Accordingly, reversing a previous conviction and ordering a new trial under a
manifest weight of the evidence claim should be saved for the “exceptional case in
which the evidence weighs heavily against the conviction.” State v. Bridges, 8th
Dist. Cuyahoga No. 100805, 2014-Ohio-4570, ¶ 67, citing Thompkins.
Id. at ¶ 16.
B. Law and Analysis
{¶10} In Vicario’s first assignment of error he argues that his convictions were against the
manifest weight of the evidence. Specifically, he argues that the evidence was too riddled with
contradiction and uncertainty to support guilty verdicts. First, Vicario challenges Dowell’s
testimony concerning his abusive behavior. Vicario also contends that the testimony of Dowell
and Colvin were unreliable because they both made deals with the state in exchange for their
testimony. Vicario argues that Derrett’s testimony about being able to identify Vicario as the
shooter was inconsistent and untrue. Finally, Vicario challenges the ballistic evidence regarding
the shell casings from the gun used in this case.
{¶11} Dowell testified that she initially did not tell the police that Vicario confessed to the
shooting because she was afraid of him. This testimony was elicited by the state in a series of
questions regarding Vicario’s and Dowell’s relationship. The state reasoned that testimony of
Vicario’s abusive behavior was necessary to show why Dowell would react or act as she did.
Dowell then testified that Vicario told her the following day that he messed up and “shot those
people.” Matthews testified that she showed Vicario where to find the people from the fight at
the convenience store. Then approximately ten minutes later, Vicario left Dowell’s home. (Tr.
410-412.) After learning of the shooting and going to the scene, Matthews informed the police
that “[Vicario] did it.” (Tr. 416.) The police asked how did she know, and she responded, “I
showed [Vicario] where he lived and I just felt like nobody else had any other motive to go shoot
anybody.” (Tr. 417.)
{¶12} Colvin testified that Vicario admitted to him that he felt bad that [Vicario] killed M.
Matthews and he was not the intended target. Vicario challenges Colvin’s and Dowell’s
credibility because they made deals with the state in exchange for their testimony. However, the
trial court was aware of the deals that the state offered Colvin and Dowell in exchange for their
testimony. Additionally, defense counsel extensively cross-examined Colvin and Dowell
regarding their deals.
When examining witness credibility, “the choice between credible witnesses and
their conflicting testimony rests solely with the finder of fact and an appellate court
may not substitute its own judgment for that of the finder of fact.” State v. Awan,
22 Ohio St. 3d 120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe
all, some, or none of the testimony of each witness appearing before it. State v.
Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.
State v. Piggee, 8th Dist. Cuyahoga No. 101331, 2015-Ohio-596, ¶ 29.
{¶13} Finally, as the detectives were investigating the homicide of M. Matthews, a shell
casing found in Watson’s home where Vicario was occasionally living matched the casings located
at the crime scene. The ballistics examiner determined that the casing was fired from the same
firearm. Thereafter, there was a peer review from two other ballistic examiners, each concluding
that the 13-shell casings found at the crime scene were fired from the same unrecovered gun that
fired the shell casing found in Watson’s home. The three examiners were in 100 percent
agreement. This evidence including the testimony of the witnesses were judged to be credible by
the trier of fact.
The trier of fact is in the best position to determine whether the proffered testimony
is credible. State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 24. We do not find that this is 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).
State v. Young, 8th Dist. Cuyahoga No. 106211, 2018-Ohio-3047, ¶ 29.
{¶14} After reviewing the evidence submitted at trial and the testimony of the witnesses,
we find that Vicario’s convictions were not against the manifest weight of the evidence and
overrule his first assignment of error.
III. Denial of Motion for Mistrial
A. Standard of Review
{¶15} “The granting or denial of a motion for mistrial rests in the sound discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Treesh, 90
Ohio St. 3d 460, 480, 739 N.E.2d 749 (2001), citing Crim.R. 33, and State v. Sage, 31 Ohio St. 3d
173, 182, 510 N.E.2d 343 (1987).” State v. Truhlar, 8th Dist. Cuyahoga No. 103312,
2016-Ohio-5338, ¶ 31. An abuse of discretion implies that the trial court’s ruling was
“unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219,
450 N.E.2d 1140 (1983).
B. Law and Analysis
{¶16} In Vicario’s second assignment of error, he argues that the trial court violated his
right to a fair trial and to due process of law when it denied his motion for a mistrial. Specifically,
Vicario argues that the trial court should have granted Vicario’s motion for a mistrial because the
state’s questioning of Dowell about Vicario’s abusive behavior was highly prejudicial and
improper evidence. Vicario also argues that the testimony and line of questioning was
cumulative and prejudicial.
In analyzing whether an appellant was deprived of a fair trial, an appellate court
must determine whether, absent the improper questions or remarks, the [trier of
fact] still would have found the appellant guilty. State v. Sopko, 8th Dist.
Cuyahoga No. 90743, 2009-Ohio-140, at ¶ 55, citing State v. Maurer, 15 Ohio St. 3d
239, 266, 473 N.E.2d 768 (1984); State v. Dixon, 8th Dist. Cuyahoga No. 68338,
1997 Ohio App. LEXIS 915 (Mar. 13, 1997). When the prosecutor’s comments
are found to be improper, it is not enough that there is sufficient other evidence to
sustain a conviction. Instead, it must be clear beyond a reasonable doubt that absent
the prosecutor’s comments, the [trier of fact] would have found defendant guilty.
State v. Clay, 181 Ohio App. 3d 563, 576, 2009- Ohio-1235, 910 N.E.2d 14, 23,
citing State v. Smith, 14 Ohio St. 3d 13, 470 N.E.2d 883 (1984). Stated another
way, “a defendant’s substantial rights cannot be prejudiced where the remaining
evidence, standing alone, is so overwhelming that it constitutes defendant’s guilt,
and the outcome of the case would have been the same regardless of evidence
admitted erroneously.” State v. Hicks, 194 Ohio App. 3d 743, 2011-Ohio-3578,
957 N.E.2d 866, ¶ 30 (8th Dist.), citing State v. Williams, 38 Ohio St. 3d 346,
349-350, 528 N.E.2d 910 (1988).
State v. Williams, 8th Dist. Cuyahoga No. 95796, 2011-Ohio-5483, ¶ 67.
{¶17} The state’s questioning of Dowell’s relationship with Vicario was as follows:
State: Was there a reason that his mom wouldn’t want — your mom
wouldn’t want [Vicario] to be there?
Dowell: Yeah, because we would fight a lot.
***
State: Was he ever violent with you?
Dowell: Yes.
State: How was he violent with you?
Defense objection sustained by the court.
State: What did he do to you?
Dowell: He used to hit me.
Defense objection sustained by the court.
***
State: The previous day you said you were in a fight with Mr. Vicario?
Dowell: Yes.
State: After the fight did you go anywhere?
Dowell: I went to the hospital.
(Tr. 236 - 238.) Defense thereafter objected and the trial court responded that “if you’re just
trying to show that he’s a bad guy, that’s sustained.” (Tr. 238.) The state responded that it [the
state] was not trying to show that Vicario was a bad guy but was getting to the point. The state
continued its questioning.
State: Why are you afraid of Mr. Vicario?
***
Dowell: He’s put his hands on me multiple times.
State: Has he ever stated anything to you that makes you afraid of him?
Dowell: Yes.
State: What?
Dowell: That he’s killed other people.
State: Who?
Dowell: Rob.
(Tr. 239.) The defense objected and proffered for the record.
{¶18} After reviewing this testimony, we find that if any error exists, it is harmless error.
“Harmless error is defined as ‘any error, defect, irregularity or variance which does not affect
substantial rights * * *.’ Crim.R. 52(A). When the error does not affect a substantial right, it
‘shall be disregarded.’ Id.” State v. Lutz, 8th Dist. Cuyahoga No. 80241, 2003-Ohio-275, ¶ 97.
{¶19} Vicario also contends that Dowell’s testimony was used to show that because Vicario
was violent or had allegedly killed before, then he killed in this case.
“‘Evidence that an accused committed a crime other than the one for which he is
on trial is not admissible when its sole purpose is to show the accused’s propensity
or inclination to commit crime or that he acted in conformity with bad character.’”
State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 67, quoting State
v. Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15, citing
State v. Curry, 43 Ohio St. 2d 66, 68, 330 N.E.2d 720 (1975). However, certain
exceptions exist to this common law rule. See R.C. 2945.59, Evid.R. 404(B).
State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 71.
{¶20} However, the state contends that Dowell’s testimony was used to show why Dowell
was afraid of Vicario and did not disclose the truth to the police during their initial questioning.
The trial court listened to the other testimony, reviewed the evidence, and was able to judge the
credibility of each witness. It appears that the court “considered only the relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.”
State v. Post, 32 Ohio St. 3d 380, 384, 513 N.E.2d 754 (1987), quoting State v. White, 15 Ohio
St.2d 146, 239 N.E.2d 65 (1968); State v. Lott, 51 Ohio St. 3d 157, 166-167, 555 N.E.2d 644
(1990); State v. Hickenbottom, 8th Dist. Cuyahoga No. 58253, 1991 Ohio App. LEXIS 1139, 3
(Mar. 21, 1991). Reviewing the record, we find that it reveals that the trial court did not consider
irrelevant or prejudicial evidence.
{¶21} Vicario’s second assignment of error is overruled.
IV. Prosecutorial Misconduct
{¶22} In Vicario’s third assignment of error, he argues that prosecutorial misconduct in the
presentation of evidence and in closing argument deprived Vicario of his right to a fair trial and
due process of law.
The test for prosecutorial misconduct is whether the prosecutor’s remarks were
improper and, if so, whether they prejudicially affected the substantial rights of the
accused. The touchstone of analysis is the fairness of the trial, not the culpability
of the prosecutor. (Citations omitted.) State v. Eisermann, 8th Dist. Cuyahoga
No. 100967, 2015-Ohio-591, ¶ 43. Prosecutorial misconduct constitutes
reversible error only in rare cases. State v. Keenan, 66 Ohio St. 3d 402, 405, 613
N.E.2d 203 (1993).
State v. Hunt, 8th Dist. Cuyahoga No. 105689, 2018-Ohio-1637, ¶ 23.
{¶23} Vicario contends that the line of questioning used by the state during Dowell’s
testimony prejudiced him. He also argues that the state’s closing argument violated his right to
a fair trial. Vicario points to the state’s statement regarding the witnesses that testified against
Vicario during the trial. The state stated, “they [the witnesses] risk a great deal. The moment
they walk out of court, that their life might be in jeopardy.” (Tr. 592.) The state was referring
to earlier testimony given by one of the witnesses that was present during the fight at the
convenience store. When the prosecution asked her if she could point to any males that were
present for the fight at the store, she responded, “You really going to ask me that question?” (Tr.
113.) The witness testified she was afraid to identify Vicario in open court.
{¶24} However, Vicario did not object to the state’s closing argument at trial. Thus, he
has waived the argument, for all but plain error.
In the absence of objection, any error is deemed to have been waived unless it
constitutes plain error. To constitute plain error, the error must be obvious on the
record, palpable and fundamental so that it should have been apparent to the trial
court without objection. See State v. Tichon, 102 Ohio App. 3d 758, 767, 658
N.E.2d 16 (1995). Moreover, plain error does not exist unless the appellant
establishes that the outcome of the trial clearly would have been different but for
the trial court’s allegedly improper actions. State v. Waddell , 75 Ohio St. 3d 163,
166, 661 N.E.2d 1043 (1996). Notice of plain error is to be taken with utmost
caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice. State v. Phillips, 74 Ohio St. 3d 72, 83, 656 N.E.2d 643
(1995).
State v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 43.
{¶25} In addition,
[g]enerally, conduct of a prosecuting attorney at trial shall not be grounds for
reversal unless the conduct deprives the defendant of a fair trial. State v.
Apanovitch, 33 Ohio St. 3d 19, 514 N.E.2d 394 (1987); State v. Papp, 64 Ohio
App.2d 203, 412 N.E.2d 401 (1978). An appellant is entitled to a new trial only
when a prosecutor asks improper questions or makes improper remarks and those
questions or remarks substantially prejudiced appellant. State v. Smith, 14 Ohio
St.3d 13, 470 N.E.2d 883 (1984).
Id. at ¶ 46.
{¶26} Also,
[t]he misconduct of a prosecutor cannot be grounds for error unless the conduct
deprives the defendant of a fair trial by prejudicially affecting the substantial rights
of the accused. State v. Lane, 108 Ohio App. 3d 477, 483, 671 N.E.2d 272 (1995).
In a bench trial, the trial court is presumed to rely only on relevant, material and
competent evidence in arriving at its judgment. Id. at 484, citing State v. Richey,
64 Ohio St. 3d 353, 357-358, 595 N.E.2d 915 (1992).
State v. Williams, 8th Dist. Cuyahoga No. 77153, 2000 Ohio App. LEXIS 4767 (Oct. 12, 2000).
{¶27} In our review of Dowell’s testimony and the state’s statements in closing arguments,
we cannot determine that Vicario was prejudiced or deprived of a fair trial. Outside of the
testimony or the closing arguments, there is still an overwhelming amount of evidence that sustains
the trial court’s finding of Vicario’s guilt. Vicario has not sufficiently demonstrated that he was
substantially prejudiced.
{¶28} Vicario’s third assignment of error is overruled.
V. Ineffective Assistance of Counsel
A. Standard of Review
{¶29} In order to substantiate a claim of ineffective assistance of counsel,
[a] defendant must establish that counsel’s performance was deficient and that the
defendant was prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel
will only be considered deficient if his or her conduct fell below an objective
standard of reasonableness. Id. at 688.
When reviewing counsel’s performance, this court must be highly deferential and
“must indulge a strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance.” Id. at 689. To establish resulting
prejudice, a defendant must show that the outcome of the proceedings would have
been different but for counsel’s deficient performance. Id.
State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 39-40.
B. Law and Analysis
{¶30} In Vicario’s fourth assignment of error, he contends that his right to effective
assistance of counsel was violated when his counsel did not object to highly prejudicial and
irrelevant testimony at trial and to highly prejudicial and improper statements by the prosecutor
during rebuttal closing argument, and he failed to seek a continuance to allow for finding a missing
witness.
Because there are countless ways to provide effective assistance in any given case,
judicial scrutiny of a lawyer’s performance must be highly deferential. State v.
May, 8th Dist. Cuyahoga No. 102482, 2015-Ohio-4275, 49 N.E.3d 736, ¶ 32, citing
Strickland, 466 U.S. 668 at 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674. “Decisions on
strategy and trial tactics are granted wide latitude of professional judgment, and it
is not the duty of a reviewing court to analyze trial counsel’s legal tactics and
maneuvers.” State v. Quinones, 8th Dist. Cuyahoga No. 100928,
2014-Ohio-5544, ¶ 18.
State v. Bell, 8th Dist. Cuyahoga No. 105000, 2017-Ohio-7168, ¶ 38.
{¶31} We have already decided that Dowell’s testimony was not prejudicial. We have
also ruled that the state’s rebuttal closing argument did not deprive Vicario of a fair trial.
However, we must address Vicario’s claim that his counsel was ineffective because counsel failed
to seek a continuance to attempt to locate an unavailable witness.
“In order to obtain a reversal on ineffective assistance of counsel based on a failure
to subpoena a witness, a defendant must demonstrate that the testimony of the
witness would be of significant assistance to the defense.” State v. Varner, 5th
Dist. Stark No. 98CA00016, 1998 Ohio App. LEXIS 4707 (Sept. 14, 1998), quoting
State v. Reese, 8 Ohio App. 3d 202, 203, 456 N.E.2d 1253 (1st Dist.1982).
Cleveland v. Thompson, 8th Dist. Cuyahoga No. 101038, 2015-Ohio-412, ¶ 11.
{¶32} The witness in question was placed on the state’s witness list. However, the state
was not able to locate him. Vicario’s trial counsel stated in his opening statement that he believed
that there was a witness who gave the police a physical description that did not match Vicario.
During trial, the state presented testimony from Detective Joselito Sandoval (“Det. Sandoval”),
stating that the witness initially gave Vicario’s description, but added that the shooter may have
had dreadlocks. Vicario does not have dreadlocks. Det. Sandoval stated that the witness was
unable to make a positive identification of the shooter. Det. Sandoval stated that the witness
requested a profile picture of the shooter because the witness saw the side of the shooter’s face as
the shooter ran away. A profile picture could not be presented to the witness during the photo
array. (Tr. 572.) The record reveals that the testimony the unlocated witness would have given
was entered through the testimony of Det. Sandoval in the presence of the trial court. Vicario
has not demonstrated that the witnesses’ presence would be of significant assistance to him. We
find that a continuance to subpoena the witness was unnecessary because the testimony of the
witness would not have been of significant assistance to the defense.
{¶33} In oral argument, counsel stated that trial counsel failed to proffer the need to seek a
continuance to try to locate the witness. “A failure to proffer does not constitute ineffective
assistance of counsel * * *.” State v. Warren, 8th Dist. Cuyahoga No. 83823, 2004-Ohio-5599,
¶ 31. “[A]s a matter of trial strategy, counsel may have declined to make a proffer which would
have highlighted the weakness of the defense, and we will not criticize what appears to be a sound
trial strategy.” Id., citing State v. White, 82 Ohio St. 3d 16, 693 N.E.2d 772 (1998).
{¶34} Vicario’s fourth assignment of error is overruled.
{¶35} Judgment affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court
to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
______________________________________
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY