State v. Wright , 90 N.E.3d 162 ( 2017 )

[Cite as State v. Wright, 2017-Ohio-1568.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150715
TRIAL NO. B-1107860B
Plaintiff-Appellee, :
O P I N I O N.
vs. :
GIOVANNI WRIGHT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 28, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M OCK , Presiding Judge.
{¶1} Defendant-appellant Giovanni Wright was indicted on one count of
aggravated murder under R.C. 2903.01(A), with accompanying specifications. His
first trial resulted in a hung jury. The case was retried, and the jury found Wright
guilty as charged. He was sentenced to life in prison without parole, plus three years’
imprisonment on one of the specifications. He now appeals that conviction. We find
no merit in his eight assignments of error, and we affirm his conviction.
I. Factual Background
{¶2} The record shows that on March 28, 2010, at approximately 12:15
a.m., police officers were dispatched to 506 East 12th Street in the Pendleton area of
Cincinnati. At that time, Pendleton was a high-crime area, with a lot of drug
trafficking and violence.
{¶3} Cincinnati police officer Richard Longworth arrived on the scene to
find an SUV that had rolled back and hit another car. An excited woman came out of
a doorway wanting to know if the individual in the car was still alive. Longworth
opened the door, turned the vehicle off and put it in park. He found the driver, later
identified as Richard Parks, slumped over inside. Longworth attempted to take the
victim’s pulse, and the victim’s head moved slightly. Longworth saw bullet holes in
his head and knew that he had died.
{¶4} The woman was Shavonne Bonner, who had once lived in the
Pendleton area, which the residents referred to as “up on the hill.” She had known
Wright since she was a child and considered him to be “like family.” At one time, she
had dated Wright’s friend, Calvin Bolton. Although she and Bolton had parted ways,
they remained friendly.
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{¶5} In 2009, Bonner began dating Parks. Bonner knew that Parks sold
drugs in his west-end neighborhood. She also knew that Wright sold drugs “up on
the hill,” and that generally sellers only conducted business in their own
neighborhoods.
{¶6} Late on March 27, 2010, Parks drove Bonner in a rented SUV to 12th
Street where she met up with friends. They sat on the steps outside of a house while
drinking and chatting. Parks asked if anyone knew where Wright and Bolton were,
and when no one there indicated that they knew, Parks made a phone call.
Afterwards, he told Bonner that he was leaving to pick up Wright and Bolton. A
short time later, Bonner accidentally dropped her phone in her drink. She called
Parks and asked him to bring her a phone before he left. When Parks did so, Bonner
did not see anyone with him in the SUV.
{¶7} Bonner then saw Parks drive away. About 15 minutes later, Parks’s
SUV “came flying down the street” and stopped a short distance away, as if it was
being parked. Bonner could not see who was inside because the windows were
tinted. She heard a gunshot and ducked down. When she looked up, she saw two
black men get out of the SUV and run up 12th Street.
{¶8} She then saw the brake lights come on as the SUV backed into another
car. She rushed over to the SUV and opened the driver’s side door. Parks was
leaning over to the right, and she put her hand on his arm and shook him. Blood
covered her hand and her jacket. She started screaming and called the police.
{¶9} After police officers had secured the scene, Detective Jacob Wloszek
arrived and saw Parks seated behind the steering wheel in the SUV with his hands
folded in his lap. He had gunshot wounds to the back right side of his head. Blood
spatters, brain matter, and skull fragments were found inside the vehicle. The police
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also found a plastic cup, a hat, a cell phone, two cell-phone chargers, drugs and cash
inside. Wloszek stated that the presence of cash and drugs with some value inside
the SUV made it less likely that robbery was the motive for the crime. Further, there
was no damage to the outside of the SUV.
{¶10} Forensic pathologist Dr. Karen Looman examined the body. She
determined that Parks had died from being shot four times in the back of the head.
Because she did not observe any stippling around the entrance wounds, she
determined that the shots were fired from an indeterminate distance, meaning at
least 18 inches away. She also stated that Parks could have been shot by somebody
behind him or he could have been shot while looking to the side.
{¶11} Officer Leigh Cherni photographed the evidence at the scene and lifted
eight fingerprints from the outside of the SUV. When the fingerprints were
compared with known fingerprints, no matches were found. Five years later, on the
eve of trial, the police resubmitted the fingerprints to a more up-to-date system. It
showed that four prints matched Wright’s. A fingerprint expert confirmed the
match. He stated that from the orientation of the prints as they were found on the
SUV’s exterior, they appeared to have been made when Wright was closing the rear
passenger door.
{¶12} Wloszek testified that Parks had been known to sell drugs and had
been a prime suspect in two other homicides. After interviewing witnesses, Wloszek
learned that the last people to see Parks before the murder were Wright and Bolton.
He also heard that Marquez Smith, who had grown up in the same area as Wright
and Bolton, had recently been charged with a crime committed in the Pendleton
area. He then contacted Smith’s attorney to see if Smith had any information about
Parks’s murder.
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{¶13} When Smith did not appear at the second trial, the trial court declared
him to be an unavailable witness. The court then allowed the state to read his
testimony from the first trial to the jury. The court also allowed the state to play to
the jury a recording of Smith’s statement to the police, over Wright’s objection.
{¶14} Smith told police that shortly before the shooting, he had seen Parks
driving a light-colored vehicle “like a little mini truck,” that appeared to be rented.
He stated that Wright and Bolton were in the car with Parks, and that Parks drove
the car down 13th Street. After seeing them drive by, Smith walked to a store at the
top of 13th Street and stood by some people he knew who were gathered there. Then
he saw the SUV drive down 12th Street and pull over. Parks was still driving, and
Smith believed that Wright was sitting in the back seat. Some women there heard a
gunshot that Smith did not hear because music was playing. Two men dressed in
black jumped out of the SUV and ran in separate directions.
{¶15} Michael Lewis had met Wright while growing up in the Pendleton
neighborhood. He knew of Parks, but did not know him personally. Several days
after Parks was shot, Lewis and Wright were selling drugs. Lewis stated that Wright
put his arm around Lewis and said that he had to “straighten that nigga from the lot
with tats on his face” because he had been trying to “take over” Wright’s territory.
Lewis knew that Wright was referring to Parks, and that to “straighten” him meant to
kill him. Lewis did not talk to the police at that time, but gave the information when
detectives contacted him months later while he was incarcerated on unrelated
charges.
{¶16} Michael Douthit testified that he knew Wright from seeing him in the
Pendleton neighborhood. They were not friendly, but they acknowledged each other.
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Douthit also knew Bolton and Parks, and he stated that he and Parks were good
friends. Douthit heard about Parks’s murder from Parks’s friends and family.
{¶17} Douthit stated that while he and Wright were both incarcerated in
Kentucky, they had talked about Parks’s murder. Wright originally denied shooting
Parks. Later, Wright discussed Parks’s alleged involvement in the murder of
Ramone Johnson. Wright stated that after Johnson’s murder, he had called Parks
and told him to “come up to the hill.” Then Wright said that he “got in the back of
the car and shot [Parks] in the back of the head.” Douthit stated that Wright killed
Parks because of the “Ramone situation” and because Wright “didn’t know if [Parks]
was gonna get him before he got [Parks].”
I. Batson Challenge
{¶18} In his first assignment of error, Wright contends that the trial court
erred in overruling his objection to the state’s use of a peremptory challenge to
exclude an African-American juror from the jury panel. He argues that the state’s
use of that challenge without a valid race-neutral reason violated his right to equal
protection. This assignment of error is not well taken.
{¶19} In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), the United States Supreme Court held that the Equal Protection Clause of the
United States Constitution precludes purposeful discrimination by the state in the
exercise of preemptory challenges so as to exclude members of minority groups from
petit juries. State v. O’Neal, 87 Ohio St.3d 402, 409, 721 N.E.2d 73 (2000); State v.
Williams, 1st Dist. Hamilton No. C-130277, 2014-Ohio-1526, ¶ 35. Batson
established a three-step procedure for evaluating claims of racial discrimination in
the use of peremptory challenges. State v. White, 85 Ohio St.3d 433, 435, 709
N.E.2d 140 (1999); Williams at ¶ 35.
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{¶20} First, the opponent of a peremptory strike must make a prima facie
showing of discrimination. Second, the proponent of the strike must give a race-
neutral explanation for the strike. State v. Herring, 94 Ohio St.3d 246, 255-56, 762
N.E.2d 940 (2002); Williams at ¶ 36. The state’s reason is deemed to be race-
neutral unless discriminatory intent is inherent in the explanation. Williams at ¶ 36;
State v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 15. Third, the
trial court must determine whether, under all the circumstances, the opponent has
proven purposeful discrimination. Herring at 256; Williams at ¶ 36.
{¶21} The burden of persuasion always stays with the opponent of the strike.
A reviewing court will defer to the trial court’s finding that no discriminatory intent
existed since it turns largely on an evaluation of credibility. Id. The reviewing court
may only reverse a trial court’s finding if that finding is “clearly erroneous.”
Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991);
Williams at ¶ 37.
{¶22} In response to Wright’s objection to the state’s use of the peremptory
challenge, the prosecutor provided several reasons for the use of the challenge. He
stated that (1) the juror had a religious background and some people “connected to
her” ministered to prisoners; (2) she had a strong personality and the prosecutor was
concerned that she might not listen and consider all of the evidence; (3) she was
overly receptive to the defendant’s point of view of the case as expressed during voir
dire; (4) she stated that she would be angry “to the point it would take control over
her” if someone suggested something that was not true about her; (5) the prosecutor
was not satisfied with her answers when she was asked about people in jail getting
case consideration; (6) she indicated that she had known a police officer and that
they did not have a “good rapport”; and (7) she indicated that she was “engaged in a
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profession of exactness.” The prosecutor indicated that it was the “cumulative effect”
of all these reasons that caused him to use the peremptory challenge.
{¶23} Thus, the prosecutor provided race-neutral reasons for the use of the
challenge. The explanation need not rise to the level of justifying the exercise of a
challenge for cause. O’Neal, 87 Ohio St.3d at 409, 721 N.E.2d 73; Williams, 1st Dist.
Hamilton No. C-130277, 2014-Ohio-1526, at ¶ 44. The trial court’s acceptance of
these race-neutral reasons was not clearly erroneous. Wright has not met his burden
to show discriminatory intent, and we overrule his first assignment of error.
II. Hearsay
{¶24} In his second assignment of error, Wright contends that the trial court
erred in allowing hearsay to be admitted into evidence. First, he argues that the
court erred in finding Marquez Smith to be an unavailable witness and allowing the
state to read his prior testimony to the jury.
{¶25} A witness is unavailable when he is absent from the proceedings and
the proponent of his statements has made reasonable, good-faith efforts to secure his
presence. State v. Keairns, 9 Ohio St.3d 228, 460 N.E.2d 245 (1984), paragraph two
of the syllabus; State v. Nix, 1st Dist. Hamilton No. C-030696, 2004-Ohio-5502, ¶
25-26. The burden is on the proponent to establish unavailability. A showing of
unavailability must be based on the testimony of witnesses rather than hearsay not
under oath unless unavailability is conceded by the party against whom the
statement is being offered. Keairns at paragraph three of the syllabus; Nix at ¶ 26-
27.
{¶26} In this case, the prosecutor did not present sworn testimony about its
efforts to procure Smith’s attendance at trial. But, the trial court stated that “based
on the off-record conversation that while defense is going to object, * * * they don’t
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dispute what [the prosecutor] has said and they’re not requiring him to put on any of
the detectives as witnesses. It’s just more a matter of objection to the testimony itself
without necessarily refuting the facts.” Wright’s counsel did not contradict that
statement, although he did not concede that Smith was unavailable.
{¶27} Wright also did not object on the basis that sworn testimony was
required. In Nix, this court, under similar facts, overruled an assignment of error in
which the defendant alleged error in the trial court’s finding that a witness was
unavailable. We stated, “we hold that the trial court and the prosecutor could have
reasonably inferred from what Nix’s attorney had said, and had not said, that a
concession was made regarding the efforts made by the prosecution to locate” the
witness. Nix at ¶ 32. We went on to state that “the foundational requirements of
Keairns are not to be strictly applied unless made an issue by events at trial.” Id. at ¶
33. Under the circumstances, we hold that Wright forfeited the right to have the
prosecution present sworn testimony. See State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 21.
{¶28} As to the merits of the state’s claim that Smith was unavailable for
trial, the record shows that before trial Smith told police that he wanted an attorney,
and the trial court appointed one for him. Smith was personally served with a
subpoena. He appeared on the first day of trial. When he was not called as a witness
that day, the prosecutor told him to return the next day. He was present the next day
when the jury was viewing the crime scene, but left the courthouse. Police officers
called Smith and sent him texts telling him to return, and he responded several
times. When Smith did not appear at the time he said he would, the state asked the
court to order a body attachment. The police contacted Smith’s parole officer, who
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unsuccessfully attempted to locate him. Police officers also went to Smith’s house
and his parents’ house in an effort to detain him, but could not find him.
{¶29} Smith had testified at the previous trial, but he was a reluctant witness.
He maintained that he did not remember anything that he had told police.
Consequently, he was called as a court witness, and the court allowed the prosecutor
to cross-examine him. The prosecutor stated, “I think the police would tell you that
he’s on the run and actively trying to avoid being brought before you for the purpose
of testifying in these proceedings.” Under the circumstances, we cannot hold that the
trial court erred in determining that the state met its burden to show that Smith was
unavailable.
{¶30} Evid.R. 804(B)(1) allows for a hearsay exception for a declarant’s
former testimony when the declarant is unavailable. Smith’s testimony from the
previous trial fell under this hearsay exception, because it came from an adversarial
proceeding and Wright had the opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination. See State v. Garnett, 1st Dist.
Hamilton No. C-090471, 2010-Ohio-3303, ¶ 8-9. Consequently, the trial court did
not err in allowing the state to read Smith’s former testimony at trial.
{¶31} Wright next contends that Smith’s unsworn statement to the police
should not have been read into the record. As the state contends, the testimony fell
under the hearsay exception for recorded recollection set forth in Evid.R. 803(5).
Under that exception, a party must establish that (1) a witness has a lack of present
recollection of the recorded matter; (2) the recorded recollection was made at a time
when the matter was fresh in the witness’s memory; (3) the recorded recollection was
made or adopted by the witness; and (4) the recorded recollection correctly reflects
the witness’s prior knowledge. State v. Davenport, 1st Dist. Hamilton No. C-980516,
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1999 WL 550425, *6 (July 30, 1999). If admitted, the memorandum or record may
be read into evidence but may not itself be received as an exhibit unless offered by an
adverse party. State v. Henson, 1st Dist. Hamilton No. C-060320, 2007-Ohio-725, ¶
17.
{¶32} At the first trial, Smith repeatedly said that he did not remember the
events in question. But he acknowledged making the statement to the police and
that, at the time, his knowledge was fresh. He denied lying to the police and stated
that he was being as honest as he could when he talked to them. Consequently, the
statement was admissible under the recorded-recollection exception to the hearsay
rule. See id. at ¶ 13-15.
{¶33} Next, Wright argues that the state should not have been permitted to
play the recording of the statement after having read it into the record. He cites no
authority for this proposition. The trial court did not send the transcript of the
statement or the recording to the jury, which would have been error. See id. at ¶ 17.
Because the statement was admissible into evidence and playing it for the jury did
not violate the rules of evidence, we cannot hold that the trial court erred in playing
the recording for the jury.
{¶34} Wright next contends that Bonner should not have been allowed to
testify as to what Parks, the victim, had said prior to the murder. She testified that
Parks had asked if anyone knew where Wright and Bolton were. Parks then made a
phone call, and afterwards, he told Bonner that he was going to go pick up Wright
and Bolton.
{¶35} The state argues that Bonner’s testimony regarding Parks’s statements
was admissible under Evid.R. 803(1). That rule provides a hearsay exception for an
out-of-court statement “describing or explaining an event or condition made while
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OHIO FIRST DISTRICT COURT OF APPEALS
the declarant was perceiving the event or condition, or immediately thereafter unless
circumstances indicate lack of trustworthiness.”
{¶36} The record does not establish a precise context for Parks’s statements.
There was no evidence showing exactly to whom he was speaking, the context of his
statements, or what precisely he was perceiving. In the absence of some evidence of
the event or condition that prompted his statements, we cannot conclude that the
statements were descriptive or explanatory. See State v. Lackey, 1st Dist. Hamilton
No. C-890682, 1990 WL 193371, *2 (Dec. 5, 1990). Consequently, the trial court
erred in admitting Bonner’s testimony about Parks’s statements.
{¶37} Nevertheless, viewing the evidence as a whole, we hold that the error
did not affect Wright’s substantial rights. Therefore, the error was harmless. See
State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15; State v.
Geary, 1st Dist. Hamilton No. C-160195, 2016-Ohio-7001, ¶ 11.
{¶38} Next, Wright contends that Detective Wloszek should not have been
allowed to testify to hearsay statements made by Michael Lewis and Michael Douthit.
The state contends that their statements were admissible under Evid.R. 801(D)(1).
That rule provides that a statement is not hearsay if “the declarant testifies at a trial
or hearing and is subject to cross-examination concerning the statement, and the
statement is * * * consistent with declarant’s testimony and is offered to rebut an
express or implied charge against declarant of recent fabrication or improper
influence or motive * * *.” In determining whether to admit a prior consistent
statement, a trial court should take a “generous view” of “the entire trial setting to
determine if there was sufficient impeachment to amount to a charge of recent
fabrication or improper influence or motivation.” State v. Jones, 1st Dist. Hamilton
No. C-080518, 2009-Ohio-4190, ¶ 35.
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{¶39} Lewis testified that while they were in prison, Wright had told him that
he had to “straighten that nigga from the lot with tats on his face,” whom Lewis knew
to be Parks. During cross-examination, Wright’s counsel implied that Lewis lied to
receive favorable treatment and that Lewis was a drug dealer with his own motive to
kill Parks. Lewis’s statement to the police was consistent with his trial testimony,
and, under the rule, it was not hearsay. See State v. Lukacs, 188 Ohio App.3d 597,
2010-Ohio-2364, 936 N.E.2d 506, ¶ 14-15 (1st Dist.).
{¶40} Similarly, Douthit testified that Wright had admitted to killing Parks
because of Parks’s involvement with the murder of another drug dealer from the
neighborhood and because he feared Parks would come after him. On cross-
examination, Wright’s counsel implied Douthit had fabricated his testimony to
receive favorable treatment. Consequently, the detective could testify about
Douthit’s prior consistent statement. Sufficient impeachment occurred to amount to
a charge of recent fabrication at trial, therefore the statements were not hearsay
under Evid.R. 801(D)(1)(b), and the trial court did not err in allowing the detective to
testify regarding those statements. See Lukacs at ¶ 15; Jones at ¶ 36-37.
{¶41} In sum, we find no reversible error in the admission of testimony of
which Wright complains. Therefore, we overrule Wright’s second assignment of
error.
III. Other-Acts Evidence
{¶42} In his third assignment of error, Wright contends that the trial court
erred by allowing other-acts testimony to be admitted into evidence. He argues that
the state should not have been allowed to present testimony that Wright was a drug
dealer and had committed other crimes, because the only purpose of this testimony
was to portray him as a violent criminal. This assignment of error is not well taken.
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{¶43} Generally, the prosecution in a criminal case may not present evidence
that the defendant has committed other crimes or acts independent of the crime for
which the defendant is being tried to establish that he acted in conformity with his
bad character. Evid.R. 404(B); Thomas, 1st Dist. Hamilton No. C-120561, 2013-
Ohio-5386, at ¶ 20. But Evid.R. 404(B) also provides that other bad acts are
admissible to show “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” State v. Shedrick, 61 Ohio St.3d 331,
337, 574 N.E.2d 1065 (1991); Thomas at ¶ 20.
{¶44} Because Evid.R. 404(B) codifies an exception to the general rule, it
must be strictly construed against admissibility. State v. Coleman, 45 Ohio St.3d
298, 299, 544 N.E.2d 622 (1989); Thomas at ¶ 21. Nevertheless, the other acts need
not be similar to the crime at issue. If the other acts tend to show by substantial
proof any of the items enumerated in Evid.R. 404(B), evidence of other acts is
admissible. Coleman at 299-300; Thomas at ¶ 21.
{¶45} The other acts in this case were not independent of the crime but were
“inextricably interwoven” with the crime charged in the indictment. See State v.
Kendrick, 1st Dist. Hamilton No. C-080509, 2009-Ohio-3876, ¶ 24. The testimony
was necessary to show the relationship between Wright, Parks, and the various
witnesses, and Wright’s motive for killing Parks. Consequently, the trial court did
not abuse its discretion by allowing the other acts to be admitted into evidence. See
State v. Carusone, 1st Dist. Hamilton No. C-010681, 2003-Ohio-1018, ¶ 29. We
overrule Wright’s third assignment of error.
IV. Impeachment
{¶46} In his fourth assignment of error, Wright contends that the trial court
erred by permitting the state to impeach its own witnesses. He contends that the
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state impeached the testimony of Bonner and Smith without complying with Evid.R.
607. This assignment of error is not well taken.
{¶47} Under Evid.R. 607(A), the party calling a witness may attack that
witness’s credibility only upon a showing of surprise and affirmative damage.
Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, at ¶ 27. A neutral
answer such as “I don’t remember” does not constitute affirmative damage. State v.
Williams, 1st Dist. Hamilton No. C-150249, 2016-Ohio-5827, ¶ 28.
{¶48} When the prosecutor asked Bonner if she had told the police who the
shooter was, she initially denied it. Then the prosecutor asked her if she told the
police that Wright had been the shooter, and she stated that she did not remember.
The state argues that this did not constitute impeachment with a prior inconsistent
statement. We disagree. Because that neutral answer did not constitute affirmative
damage, those questions were inappropriate under Evid.R. 607.
{¶49} Nevertheless, Wright did not object. And we can reverse only upon a
finding of plain error. See State v. Underwood, 3 Ohio St.2d 12, 13, 444 N.E.2d 1332(1983); Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, at ¶ 31. We
cannot hold that but for the error, the results of the proceeding would have been
otherwise. Therefore, the error did not rise to the level of plain error. State v.
Wickline, 50 Ohio St.3d 114, 119-120, 552 N.E.2d 913 (1990); Lukacs at ¶ 31.
{¶50} Smith also testified at the previous trial that he did not remember
talking to the police. Impeachment of his testimony would not have been
permissible under Evid.R. 607. But his statement was separately admissible under
Evid.R. 803(5) as recorded recollection. Therefore, the trial court did not err in
allowing it to be admitted into evidence, and we overrule Wright’s fourth assignment
of error.
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V. Prosecutorial Misconduct
{¶51} In his fifth assignment of error, Wright contends that the trial court
erred in allowing the prosecutor to introduce improper evidence and commit other
misconduct during the trial. He argues that the prosecutor improperly impeached
witnesses, introduced improper evidence, improperly vouched for witnesses, and
made improper comments during closing argument. This assignment of error is not
well taken.
{¶52} Prosecutors are normally entitled to wide latitude in their remarks.
State v. Mason, 82 Ohio St.3d 144, 162, 694 N.E.2d 932 (1998); Lukacs, 188 Ohio
App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, at ¶ 55. The test for prosecutorial
misconduct is (1) whether the remarks were improper, and (2) if so, whether the
remarks affected the accused’s substantial rights. State v. Lott, 51 Ohio St.3d 160,
165, 555 N.E.2d 293 (1990); Lukacs at ¶ 55. The conduct of the prosecuting attorney
cannot be grounds for error unless it deprives the defendant of a fair trial. State v.
Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993); Lukacs at ¶ 55.
{¶53} Most of Wright’s arguments are a rehash of the arguments in his
previous assignments of error, the majority of which we have already rejected. As for
the comments in closing argument, Wright failed to object to many of the comments
that he now claims were improper. Thus, he cannot raise these issues on appeal
unless they rise to the level of plain error. See Underwood, 3 Ohio St.3d at 13, 444
N.E.2d 1332; Lukacs at ¶ 56. Our review of the record shows that even if some of the
comments were improper, none were so egregious as to affect his substantial rights
or to deny him a fair trial. Therefore, they did not rise to the level of plain error. See
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22. Consequently,
we overrule Wright’s fifth assignment of error.
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VI. Ineffective Assistance of Counsel
{¶54} In his sixth assignment of error, Wright contends that he was denied
the effective assistance of counsel. He argues that his counsel was ineffective for
failing to object to other-acts evidence, hearsay evidence, improper impeachment,
and prosecutorial misconduct. This assignment of error is not well taken.
{¶55} A court will presume that a properly licensed attorney is competent,
and the defendant bears the burden to show ineffective assistance of counsel. State
v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); State v. Hackney,
1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 36. To sustain a claim for
ineffective assistance of counsel, the defendant must demonstrate that counsel’s
performance was deficient, and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); Hackney at ¶ 36.
{¶56} Counsel’s failure to make objections is not, by itself, enough to sustain
a claim for ineffective assistance of counsel. State v. Conway, 108 Ohio St.3d 214,
2006-Ohio-791, 842 N.E.2d 996, ¶ 168; Hackney at ¶ 39. The record shows that
Wright’s attorney provided his client with a diligent and thorough defense. Wright
has not demonstrated that his counsel’s representation fell below an objective
standard of reasonableness or that, but for counsel’s unprofessional errors, the
results of the proceeding would have been otherwise. Therefore, he has failed to
meet his burden to show ineffective assistance of counsel. See Strickland at 687-
689; Hackney at ¶ 37-38. We overrule his sixth assignment of error.
VII. Weight and Sufficiency
{¶57} In his seventh assignment of error, Wright contends that the evidence
was insufficient to support his conviction. Our review of the record shows that a
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OHIO FIRST DISTRICT COURT OF APPEALS
rational trier of fact, after viewing the evidence in a light most favorable to the
prosecution, could have found that the state proved beyond a reasonable doubt all of
the elements of aggravated murder, along with the accompanying specifications.
Therefore, the evidence was sufficient to support the conviction. See State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Hackney at
¶ 29.
{¶58} Wright argues that no physical evidence linked him to the offense.
This argument ignores the fact that Wright’s fingerprints were found on the outside
of the SUV that Parks was driving. But even if his fingerprints had not been found,
no rule of law exists that a witness’s testimony must be corroborated by physical
evidence. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, at ¶ 45. He
also argues that the state’s evidence was not credible. But in deciding if the evidence
was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of
witnesses. Id.{¶59} Wright also argues that the conviction was against the manifest weight
of the evidence. After reviewing the record, we cannot say that the trier of fact lost its
way and created such a manifest miscarriage of justice that we must reverse the
conviction and order a new trial. Therefore, the conviction was not against the
manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997); State v. Blair, 1st Dist. Hamilton Nos. C-100150 and C-
100151, 2010-Ohio-6310, ¶ 24. Again, Wright argues that the state’s evidence was
not credible, but matters as to the credibility of evidence are for the trier of fact to
decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116;
Thomas at ¶ 48. Therefore, we overrule Wright’s seventh assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
VIII. Sentencing Notification
{¶60} Finally, in his eighth assignment of error, Wright contends that the
trial court erred by failing to inform him at sentencing about the requirement to
submit to DNA testing and the consequences for failing to do so under R.C.
2901.07(B). But he acknowledges that this court has held that the statute does not
confer any substantive rights on the defendant. Therefore, the court’s failure to
notify Wright about DNA testing was harmless and did not prejudice him. See State
v. Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548, ¶ 5-6. Consequently,
we overrule his eighth assignment of error.
IX. Summary
{¶61} In sum, we find no merit in Wright’s assignments of error. The trial
court committed no reversible error, and Wright received a fair trial. Consequently,
we affirm the trial court’s judgment.
Judgment affirmed.
C UNNINGHAM and Z AYAS , JJ., concur.
Please note:
The court has recorded its own entry this date.
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