State v. Allen , 2016 Ohio 102 ( 2016 )

[Cite as State v. Allen, 2016-Ohio-102.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102385
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ERNEST L. ALLEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-589485-A
BEFORE: Jones, A.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 14, 2016
ATTORNEY FOR APPELLANT
Anna Markovich
Law Office of Anna Markovich
18975 Villaview Road, #3
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jonathan Block
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:
{¶1} Defendant-appellant, Ernest Allen, appeals his multiple convictions, which
were rendered after a bench trial. We affirm.
{¶2} In 2014, Allen was charged with attempted murder, retaliation, menacing by
stalking, having weapons while under disability, and two counts each of felonious assault
and attempted felonious assault. The charges carried with them one- and three-year
firearm and repeat violent offender specifications.
{¶3} The following pertinent evidence was presented at trial.
{¶4} Allen and victim Jesse Perry knew each other and had a friendly relationship
until 2010 or 2011. It was at that time that Allen was arrested for robbery; Perry
testified that he was the victim of the crime. Allen pleaded guilty and was sent to prison.
According to Perry, Allen blamed him for his conviction.
{¶5} In February 2014, Perry ran into Allen at a convenience store. Allen called
Perry a snitch, pulled out a gun, and showed it to Allen. Allen went outside and Perry
went and hid in the store’s cooler. Allen left when Perry’s friends showed up.
{¶6} In June 2014, Perry and Charnay James were sitting in James’s car outside of
Shaker Park Gardens in Warrensville Heights. James and Perry saw Allen in the car’s
rearview mirror. Allen was holding a gun. Perry turned around in his seat to look at
Allen just as Allen started shooting at the car; two bullets hit the car. Perry got out of
the car and ran towards the apartment building. Allen fired his gun three more times at
Perry before fleeing the scene.
{¶7} Responding officers testified that they took statements from Perry and James
and processed the scene, recovering a bullet fragment from the trunk of James’s car and a
shell casing.
{¶8} The trial court acquitted Allen of menacing by stalking and of all the repeat
violent offender specifications but convicted him of all other charges and specifications.
The court sentenced Allen to a total of ten years in prison.
{¶9} Allen filed his notice of appeal and raises eight assignments of error for our
review:
I: Trial court erred in denying Appellant’s motion for acquittal under Crim.
Rule 29.
II: Appellant’s conviction for attempted murder is not supported by
sufficient evidence.
III: Appellant’s conviction for attempted murder, felonious assault,
attempted felonious assault, having weapons under disability, and
retaliation are against the manifest weight of the evidence in violation of
Article IV, Section 3 of the Ohio Constitution.
IV: Trial court erred by not merging two counts of felonious assault and
two counts of attempted felonious assault for sentencing purposes.
V: Trial court committed a reversible error when it permitted Sergeant
Vida to render an opinion as to the nature of the holes found in the rear
panel and the trunk of James’ car.
VI: Appellant was deprived due process by the trial court.
VII: Appellant was denied his constitutional right to effective assistance
of counsel pursuant to the Sixth and Fourteenth Amendments of the United
States Constitution and Article 1, Section X of the Ohio Constitution
VIII: The totality of the aforementioned errors by the trial court,
prosecuting counsel, and by defense counsel and their cumulative
prejudicial effect deprived Appellant of his constitutional right to due
process of law and a fair trial.
{¶10} Further facts will be discussed under the appropriate assignments
of error.
Allen’s convictions were supported by the evidence
{¶11} In the first three assignments of error, Allen argues that his convictions were
against the manifest weight of the evidence and were not supported by sufficient
evidence. Although the concepts of manifest weight and sufficiency of the evidence
involve different standards of review, we proceed to discuss them together because the
evidence is the same for both. As an initial matter, Allen lists his retaliation conviction
under the third assignment of error, but makes no specific argument as to that conviction.
Thus, we will not consider this conviction and it is affirmed. See App.R. 12(A) and
16(A).
{¶12} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the state’s evidence is insufficient to sustain a conviction for the offense; Crim.R. 29(A)
and a sufficiency of the evidence review require the same analysis. State v. Tenace, 109
Ohio St. 3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. In analyzing whether a
conviction is supported by sufficient evidence, the reviewing court must view the
evidence “in the light most favorable to the prosecution” and ask whether “any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979); State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus; State v. Carter, 72 Ohio St. 3d 545, 651 N.E.2d 965 (1995).
{¶13} Unlike a claim involving sufficiency of the evidence, when reviewing a
challenge to the manifest weight of the evidence, this court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created 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). Reversing a conviction as being against the manifest weight of the
evidence is reserved for only the exceptional case in which the evidence weighs heavily
against the conviction. Id. It is not the function of an appellate court to substitute its
judgment for that of the trier of fact. Jenks at 279; State v. Schultz, 8th Dist. Cuyahoga
Nos. 102306 and 102307, 2015-Ohio-3909, ¶ 35.
{¶14} Allen was convicted of attempted murder, in violation of R.C. 2903.02 and
2923.02(A). To convict Allen of attempted murder, the state had to prove beyond a
reasonable doubt that Allen purposely attempted to cause Perry’s death. R.C. 2901.22(A)
provides that a person acts purposely when it is his or her
specific intention to cause a certain result, or, when the gist of the offense is
a prohibition against conduct of a certain nature, regardless of what the
offender intends to accomplish thereby, it is his specific intention to engage
in conduct of that nature.
The requisite intent to kill can be shown “where the natural and probable consequences of
a defendant’s action is to produce death [and could be] inferred from all the surrounding
circumstances.” State v. Caldwell, 79 Ohio App. 3d 667, 668, 607 N.E.2d 1096 (4th
Dist.1992). And intent need not be proven by direct testimony. State v. Burke, 73
Ohio St. 3d 399, 404, 653 N.E.2d 242 (1995); State v. Lott, 51 Ohio St. 3d 160, 168, 555
N.E.2d 293 (1990). Instead, an intent to kill may be deduced from the surrounding
circumstances, including the nature of the instrument used, its tendency to end life if
designed for that purpose, and the manner in which any wounds were inflicted. State v.
Eley, 77 Ohio St. 3d 174, 180, 672 N.E.2d 640 (1996); Burke at 404. That a victim is not
harmed is not a defense to attempted murder. State v. Jenkins, 15 Ohio St. 3d 164, 220,
473 N.E.2d 264 (1984).
{¶15} Allen argues that the state failed to produce sufficient evidence that he
purposely tried to kill or had the intent to kill Perry. Allen claims that he had never
previously threatened to kill Perry, the shots fired could not have hit Perry because the
holes in James’s car were found on the opposite side of the car from where Perry was
sitting, and Perry testified that once he left James’s car, the shots were fired “around”
him, not “directly at [him].” Allen further argues that a “mere possibility that Perry
could have been hurt by a ricocheted bullet is not sufficient to prove the requisite intent to
kill.” We disagree.
{¶16} Perry testified that he and Allen knew each other and Allen blamed Perry for
sending him to prison. According to Perry, Allen threatened him with a gun the last time
they encountered each other in a convenience store. On the night of the shooting, Perry
saw Allen standing approximately ten feet away from the car in which Perry was a
passenger. Perry saw Allen with a gun and Allen used that gun to shoot at the car.
After Perry got out of the car, Allen continued to fire his gun. Perry testified: “The
[shots] came toward me. I don’t know where they went after that, but they came toward
me in the air. * * * They came past my person, they came past my body. * * * It was like
boom, boom, boom, because he was trying to hit me.” That none of the bullets hit Perry
does not negate that Allen purposefully shot at him, with the intent to kill him.
{¶17} Allen also points to inconsistencies in witness testimony and argues that
these inconsistencies amount to an incorrect verdict on all of the charges against him.
Again, we disagree. Much of Allen’s argument is based on the interpretation of the
evidence presented at trial and how that evidence was incorrectly used to convict him.
For example, Allen claims that Perry could not have possible seen him out of the rearview
mirror because Perry was a passenger in the car; therefore, Perry must have lied about
Allen being the shooter. But there was no testimony presented at trial about this issue
and it is not within our province to interpret the evidence in this manner. And,
moreover, any divergence in testimony created a credibility issue for the trier of fact to
resolve. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus.
{¶18} We are reminded that the manifest weight standard is a high one because the
trier of fact was in a better position to determine credibility issues, by having personally
viewed the demeanor, voice inflections, and gestures of the witnesses. Cleveland v.
Joiner, 8th Dist. Cuyahoga Nos. 97434 and 97435, 2012-Ohio-3250, ¶ 17, citing State
v. Ali, 154 Ohio App. 3d 493, 2003-Ohio-5150, 797 N.E.2d 1019, ¶ 36 (7th Dist.); DeHass
at 231. A reviewing court therefore should not interfere with the witness credibility and
factual determinations of the trier of fact, unless the record demonstrates that a reasonable
trier of fact simply could not have found the witness to be credible. Joiner at id., citing
State v. Mock, 187 Ohio App. 3d 599, 2010-Ohio-2747, 933 N.E.2d 270, ¶ 40 (7th Dist.).
Simply put, just because the credibility of the witnesses and the evidence was resolved in
the state’s favor does not make Allen’s convictions against the weight of the evidence.
{¶19} There was sufficient evidence to support Allen’s convictions and the
convictions were not against the manifest weight of the evidence. Therefore, the first,
second, and third assignments of error are overruled.
Trial court correctly merged certain convictions
{¶20} In the fourth assignment of error, Allen claims that the trial court should
have merged the two felonious assault and two attempted felonious assault convictions
even though they involved multiple victims. This argument has no merit.
{¶21} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶22} “Because the prosecution selects the charges that may be brought based
upon the criminal conduct of an accused, and that conduct may potentially support
convictions of multiple offenses, the judge must determine whether the conduct can be
construed to constitute a single or more than one offense.” State v. Ruff, 143 Ohio St. 3d
114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 13. “Thus, R.C. 2941.25(A) allows only a single
conviction for conduct that constitutes ‘allied offenses of similar import.’” Id.
{¶23} In this case, the trial court merged the felonious assault and attempted
felonious assault as to Jesse Perry into the conviction for attempted murder. The state
proceeded to sentencing on the attempted murder conviction. The trial court further
merged the felonious assault and the attempted felonious assault as to Charnay James and
the state proceeded to sentencing on the felonious assault conviction. Allen argues that
the felonious assault and attempted felonious assault convictions as to each victim should
merge into just one conviction. But, as stated, Allen was sentenced for only the
attempted murder of Perry and the felonious assault of James. So while Allen may have
been found guilty on each of the above-mentioned charges, he was only sentenced on one
count as to Perry and one count as to James.
{¶24} Thus, Allen’s argument is essentially that the attempted murder of Perry and
the felonious assault of James should merge into a single conviction. But, as the Ohio
Supreme Court reiterated in Ruff, “[w]hen a defendant’s conduct victimizes more than
one person, the harm for each person is separate and distinct, and therefore, the defendant
can be convicted of multiple counts.” Id. at ¶ 10. “[T]wo or more offenses of
dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s
conduct constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.” Id.
{¶25} In this case, because the attempted murder of Perry and the felonious assault
of James involved separate victims, the offenses were of dissimilar import and Allen was
properly convicted and sentenced on each count.
{¶26} The fourth assignment of error is overruled.
Trial testimony was properly admitted
{¶27} In the fifth assignment of error, Allen argues that Warrensville Heights
Police Sergeant Steve Vida’s testimony as to the nature of the bullet holes found in
James’s car was improperly admitted. Because Allen failed to object to Sergeant Vida’s
testimony during trial, he has waived all but plain error on this issue.
{¶28} It is a well-established rule that
“an appellate court will not consider any error which counsel for a party
complaining of the trial court’s judgment could have called but did not call
to the trial court’s attention at a time when such error could have been
avoided or corrected by the trial court.”
State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21, quoting State
v. Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15. Crim.R.
52(B) allows appellate courts to correct “[p]lain errors or defects affecting substantial
rights” notwithstanding the defendant’s failure to meet his or her obligation to bring those
errors to the attention of the trial court. But it is the accused who bears the burden of
proof to demonstrate plain error on the record and must show “an error, i.e., a deviation
from a legal rule” that constitutes “an ‘obvious’ defect in the trial proceedings.” Rogers
at ¶ 22 citing Quarterman at ¶ 16 and State v. Barnes, 94 Ohio St. 3d 21, 27,
2002-Ohio-68, 759 N.E.2d 1240. However, even if the error is obvious, it must have
affected substantial rights, and “[w]e have interpreted this aspect of the rule to mean that
the trial court’s error must have affected the outcome of the trial.” Rogers at id., citing
Barnes at id.
{¶29} The Rogers court reminds us that “even if an accused shows that the trial
court committed plain error affecting the outcome of the proceeding, an appellate court is
not required to correct it; we have “‘admonish[ed] courts to notice plain error ‘with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.”’ Id. at ¶ 23, citing Barnes at 27 (quoting State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus).
{¶30} Allen claims that the trial court erred when it allowed Sergeant Vida to
opine that the bullet hole on the side rear panel of James’s car appeared to be an entrance
hole and the bullet came from outside the car because the sergeant was not qualified as a
ballistics expert.
{¶31} The decision whether to admit or exclude evidence is left to the sound
discretion of the trial court and will not be reversed unless there was an abuse of that
discretion. Columbus v. Taylor, 39 Ohio St. 3d 162, 164, 529 N.E.2d 1382 (1989).
Evid.R. 701 provides that a lay witness may testify to those “opinions or inferences which
are (1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness’s testimony or determination of a fact in issue.” A police
officer may testify concerning matters that are within his or her experience and
observations that may aid the trier of fact in understanding the other testimony. State v.
Rogers, 8th Dist. Cuyahoga Nos. 72736 and 72737, 1998 Ohio App. Lexis 2300, *9 (May
21, 1998).
{¶32} Ohio has long recognized that a nonexpert witness can properly express
opinions that merely summarize complex factual observations, when the testimony is a
composite of fact and opinion. State v. Morris, 8 Ohio App. 3d 12, 16, 455 N.E.2d 1352
(8th Dist.1982). Evid.R. 701 requires that any opinion offered by a lay witness be
rationally based on first-hand perceptions by the witness. State v. Hall, 2d Dist.
Montgomery No. 19671, 2004-Ohio-663, ¶ 8. If a lay witness’s opinion is not
“rationally based on the perception of the witness,” then “the opinion is speculation, and
as such, cannot be ‘helpful to a * * * determination of a fact in issue.”’ State v. Cornish,
12th Dist. Butler No. CA2014-02-054, 2014-Ohio-4279, ¶ 24, quoting State v. Feerer,
12th Dist. Warren No. CA2008-05-064, 2008-Ohio-6766, ¶ 23.
{¶33} An officer’s belief as to a fact based on personal observations of facts to
support that belief is permissible first-hand testimony. State v. Tatum, 10th Dist.
Franklin No. 10AP-626, 2011-Ohio-907, ¶ 17.1 For example, in State v. Whittsette, 8th
1
The court issued a nunc pro tunc opinion in Tatum, substituting a new opinion that changed
the name of the victim to initials. See State v. Tatum, 10th Dist. Franklin No. 10AP-626, 2012 Ohio
App. LEXIS 895 (Mar. 13, 2012). The Ohio Supreme Court website, however, directs us to use the
original website for the substituted opinion, 2011-Ohio-907.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2011/2011-Ohio-907.pdf (last visited December
16, 2015).
Dist. Cuyahoga No. 70091, 1997 Ohio App. LEXIS 500 (Feb. 13, 1997), this court held
that a police detective’s testimony that he doubted a wound was caused by a particular
caliber gun was properly admitted, pursuant to Evid.R. 701, based on his familiarity with
guns and past observances of gunshot wounds made by various caliber guns. In State v.
Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, the court held that an
officer’s testimony opining that injuries to a domestic violence victim were defensive
wounds was admissible lay-witness testimony given the fact that it was based on the
officer’s personal observation of the victim, training as a police officer regarding
defensive wounds, and his common understanding of how bruises, abrasions, and rashes
appear. Id. at ¶ 76-77. In State v. Parker, 2d Dist. Montgomery No. 18926,
2002-Ohio-3920, the court held that pursuant to Evid.R. 701, a detective was permitted to
testify that two wounds on the defendant were consistent with gunshot wounds based
upon the detective’s 22 years of experience on the police force, experience with victims
of gunshot wounds, and familiarity with different types of gunshot wounds. Id. at ¶ 53.
{¶34} In this case, Sergeant Vida testified that he had been employed by the
Warrensville Heights Police Department for 18 years. He observed two bullet holes in
James’s car, found a shell casing in the trunk, and photographed the car.
{¶35} Sergeant Vida’s testimony was based on his first-hand knowledge in
investigating the crime scene and was rationally based on his perceptions; he did not need
the specialized knowledge of a ballistics expert to describe his observations and
investigation into the shooting. Even assuming, without deciding, that the trial court
improperly allowed Sergeant Vida to testify regarding his opinion about the bullet holes
in James’s car, there is nothing to suggest that his testimony affected the outcome of the
trial. Moreover, because this was a bench trial, the trial court was presumed to have
only considered reliable, relevant, and competent evidence in rendering its verdict. State
v. Andre, 8th Dist. Cuyahoga No. 101023, 2015-Ohio-17, ¶ 27.
{¶36} Finally, we note that Allen did not challenge the testimony of Detective
Fossett. Detective Fossett testified that there were two visible holes, which he
determined to be bullet holes in the left rear panel of James’s car. Based on his
experience and training, the detective testified that the shooter was fairly close to the
vehicle and the holes left in the car were rather large. He opined that one of the bullet
holes was a “straight-on shot” based on the shape of the bullet hole, which allowed him to
determine if the bullet was shot from a left angle, right angle, or straight-on angle
depending on the diameter of the hole. He further testified that the bullet hole inside the
trunk was caused by a bullet fragment. Thus, even if Sergeant Vida’s testimony was in
error, Allen failed to challenge same or similar testimony given by Detective Fossett.
{¶37} We find that there was no error, plain or otherwise, in the trial court
allowing Sergeant Vida’s testimony into evidence. The fifth assignment of error is
overruled.
No evidence of trial court bias
{¶38} In the sixth assignment of error, Allen claims that the trial court was biased
in favor of the state. Because Allen did not raise this issue in the trial court, he has
waived all but plain error.
{¶39} Allen argues that on numerous occasions during the trial,
in order to overcome defense objections, the court instructed the
prosecuting attorney to establish a proper foundation for his questions and
assisted the prosecuting attorney with rephrasing his questions, so the
witnesses testimony
would be admissible. Allen argues that the trial court’s actions prejudiced him and
denied him a fair trial.
{¶40} To support his position, Allen cites to the concurring/dissenting opinion in
State v. Maxie, 3d Dist. Marion No. 9-13-73, 2015-Ohio-816, ¶ 100 (Rogers, P.J.,
concurring and dissenting), where the panel member opined,
It is wholly inappropriate for a trial court to continually remind the State
what evidence it has presented, or has not presented, throughout the trial
proceedings. Certainly, it should not suggest to the State the different
ways it could introduce the missing evidence.
{¶41} In Maxie, the appellant had claimed that he was denied a fair trial because
the trial court assisted the state in the presentation of its case, pointing to several
statements and comments the trial court made that assisted the appellee in obtaining a
conviction. The court noted that the appellant had failed to allege a plain error occurred
or that his substantial rights had been affected. The court found that while the trial court
had interjected itself in the proceedings, the majority of the complained-of behavior
simply and properly served to preserve the record, the court also assisted defense counsel,
and the instances in which the trial court seemed to have been “helping” the parties did
not amount to prejudice. And the appellant had not suggested a possibility that the state
would have failed to establish any elements of the crime and any such suggestion would
be speculative. Even the concurring/dissenting panel member agreed that the appellant’s
argument had no merit because he had failed to object to the improper interjections at
trial, and failed to prove that but for the trial court’s comments, the outcome of his trial
would be different. Id. at ¶ 101.
{¶42} In this case, Allen complains that the trial court constantly reminded the
state that it needed to build a foundation for its questions about how a witness identified
the assailant, whether the victim feared for her safety, whether the testifying officer could
opine about the trajectory of the bullet, and whether the testifying officer knew if the
bullet had hit its target or could be capable of killing someone. But a review of the
record shows that the trial court was questioning the prosecutor and requiring him to lay a
foundation for questions the prosecutor was asking at least in part so the court could
determine the admissibility of the testimony. And, moreover, the court also “assisted”
defense counsel in the same or similar manner. Moreover, there is no evidence that the
outcome of the trial would have been different but for the trial court’s interjections.
{¶43} Therefore, the sixth assignment of error is overruled.
Defense counsel was not constitutionally ineffective
{¶44} In the seventh assignment of error, Allen argues that he was denied the
effective assistance of counsel.
{¶45} The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the effective assistance of counsel. McMann v. D.R., 397 U.S. 759,
771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). Courts employ a two-step process to
determine whether the right to effective assistance of counsel has been violated.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
First, the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Id.
{¶46} An attorney properly licensed in the state of Ohio is presumed competent.
State v. Lott, 51 Ohio St. 3d 160, 174, 555 N.E.2d 293 (1990). The defendant has the
burden of proof and must overcome the strong presumption that counsel’s performance
was adequate or that counsel’s action might be sound trial strategy. State v. Smith, 17
Ohio St. 3d 98, 100, 477 N.E.2d 1128 (1985). In demonstrating prejudice, the defendant
must prove that there exists a reasonable probability that, were it not for counsel’s errors,
the result of the trial would have been different. State v. Bradley, 42 Ohio St. 3d 136,
538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶47} Allen claims that his attorney was ineffective for failing to: 1) effectively
cross-examine the state’s witnesses; 2) object to Sergeant Vida’s testimony about the
bullet holes; 3) request ballistic and crime-scene reconstruction examinations; 4) object to
the prosecution’s misstatement of the evidence during closing arguments; and 5)
effectively argue allied offenses.
{¶48} First, we note that as to Sergeant Vida’s testimony and allied offenses, we
have already found that there was no error; therefore, counsel was not ineffective in these
instances.
{¶49} In reviewing defense counsel’s cross-examination of the state’s witnesses,
we are reminded that the extent and scope of cross-examination falls within the ambit of
trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.
See State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 33 (because
the scope of cross-examination falls within the realm of trial strategy, debatable trial
tactics do not establish ineffective assistance of counsel), citing State v. Conway, 109
Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810. In reviewing defense counsel’s
questioning of the state’s witnesses, we find the record demonstrates that defense counsel
extensively cross-examined all of the state’s witnesses.
{¶50} Allen also claims his counsel was ineffective for failing to request ballistic
and crime-scene reconstruction examinations. But Allen has not shown how doing so
would have assisted his case, let alone changed the outcome of the trial. Finally, Allen
argues that his attorney should have objected to the prosecution’s alleged misstatement of
the evidence during his closing argument. But, again, because this is a bench trial, the
court is presumed to take into account only reliable, relevant, and competent evidence.
Opening and closing statements are not evidence. Allen v. Jackson, 8th Dist. Cuyahoga
No. 101193, 2014-Ohio-5793, ¶ 32; State v. Spaqi, 8th Dist. Cuyahoga No. 69851, 1997
Ohio App. LEXIS 713 (Feb. 27, 1997).
{¶51} After reviewing the record, we find that Allen has not demonstrated a
reasonable probability that the outcome of the proceedings would have been different but
for defense counsel’s alleged deficient performance. The seventh assignment of error is
overruled.
Cumulative error doctrine does not apply
{¶52} In the eighth assignment of error, Allen argues that the cumulative errors
that occurred at trial deprived him of his right to a fair trial.
{¶53} Under the doctrine of cumulative error, a conviction will be reversed when
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to
a fair trial even though each of the errors does not individually constitute cause for
reversal. State v. Garner, 74 Ohio St. 3d 49, 64, 656 N.E.2d 623 (1995). However, the
doctrine of cumulative error is inapplicable when the alleged errors are found to be
harmless or nonexistent. Id.; State v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059, 796
N.E.2d 506, ¶ 48. Because this court has found Allen’s arguments with regard to his
other assignments of error meritless, the cumulative error doctrine does not apply.
{¶54} Therefore, the eighth assignment of error is overruled.
{¶55} Judgment affirmed.
It is ordered that appellee recover of 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.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR