State v. Lamb , 110 N.E.3d 564 ( 2018 )

[Cite as State v. Lamb, 2018-Ohio-1405.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 17CA3796
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
TOBY L. LAMB, II :
:
Defendant-Appellant. : Released: 04/10/18
_____________________________________________________________
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Mark Kuhn, Scioto County Prosecuting Attorney, and Shane Tieman, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Toby Lamb, II, appeals his convictions and sentences for
aggravated robbery and failure to comply with an order or signal of a police
officer, after a jury found him guilty of both charges. On appeal, Appellant
contends that 1) his trial counsel was ineffective for failing to properly
advise him of a plea offer made by the State of Ohio; 2) his convictions for
aggravated robbery and failure to comply were against the manifest weight
and sufficiency of the evidence; 3) the trial court abused its discretion in
admitting improper hearsay evidence from Detective Jodi Conkel and/or
Scioto App. No. 17CA3796 2
failing to provide a proper curative instruction; 4) his speedy trial rights
under R.C. 2945.71 were violated as a matter of law; 5) a mistrial should
have been declared due to improper selection of the alternate juror at trial; 6)
he was denied his Sixth Amendment right to a fair trial when his pro se
motions went unaddressed; and 7) cumulative errors committed during his
trial deprived him of a fair trial and require reversal of his conviction.
{¶2} Because we conclude Appellant’s trial counsel was not
ineffective with respect to advising him regarding his plea offers made by
the State, Appellant’s first assignment of error is overruled. And, we cannot
conclude that Appellant’s convictions were against the manifest weight of
the evidence or not supported by sufficient evidence, his second assignment
of error is overruled. Likewise, in light of our finding there was no plain
error in the trial court’s admission of alleged hearsay testimony by Detective
Conkel or failure to issue a curative instruction, Appellant’s third assignment
of error is overruled. Similarly, having concluded Appellant did not
preserve his speedy trial argument for purposes of appeal, his fourth
assignment of error is overruled. Also, having determined the trial court did
not err in failing to declare a mistrial, we must overrule Appellant’s fifth
assignment of error. Finally, having found no merit to Appellant’s sixth or
seventh assignments of error, they are also overruled.
Scioto App. No. 17CA3796 3
FACTS
{¶3} A review of the record reveals that on October 16, 2015, an
African-American male entered the Super 8 Motel located in the Rosemount
area of Scioto County, Ohio, at approximately 4:52 a.m. Accordingly to the
hotel clerk, Andrea Meddock, the man was wearing a hunter green
sweatshirt with no hood but with a towel or something around his head so
that only his eyes could be seen, clear plastic gloves (the type used while
dying hair, not medical gloves), and was holding a silver gun. He ordered
the clerk to open the safe; however, she fled without giving him any money,
and then he fled as well. Scioto County Sheriff’s Deputy Brian Nolan
responded to the scene, took the statement of the clerk, and radioed dispatch
to issue an order to be on the lookout for the suspect. New Boston Police
Department Officer Josh Carver was working in the Rosemount area at the
time and heard the radio traffic indicating an armed robbery had occurred at
the motel. He stationed himself at a gas station on the corner of Rosemount
Road and State Route 139 and pointed his lights toward oncoming traffic so
he could watch for the suspect.
{¶4} Shortly thereafter Officer Carver saw a vehicle coming down
Rosemount Road with what he described as two African-American
individuals. When the individual in the passenger seat completely laid the
Scioto App. No. 17CA3796 4
seat down in what appeared to be an effort to hide, after passing a Sheriff’s
cruiser traveling the opposite direction with lights and sirens, Officer Carver
decided to follow the vehicle. The vehicle, a maroon colored Pontiac
Bonneville, initially stopped pursuant to a traffic stop initiated by Officer
Carver; however, as Officer Carver approached the passenger side of the
vehicle and was able to view an African-American male, the driver of the
vehicle sped off. A high-speed chase ensued with the car stopping one time
while on Route 139, at which point the driver of the vehicle jumped, or
stumbled, out of the car. The passenger then got into the driver’s seat and
the chase continued. Officer Carver chased the vehicle down Route 139 and
over Houston Hollow Road at speeds up to 80 M.P.H., around curvy and
poorly lit residential areas. The chase ended with the vehicle flipping over.
The suspect fled and was not apprehended. Upon doing an inventory of the
vehicle, law enforcement recovered a hunter green sweatshirt with no hood,
clear plastic, non-medical gloves, and a nickel-plated semi-automatic pistol.
{¶5} The original driver of the car, later determined to be an African-
American female named Danielle Foster from Dayton, Ohio, was later
picked up by the Sheriff’s office and was taken to the jail for questioning.
Detective Jodi Conkel interviewed Ms. Foster the next day at the jail. Ms.
Foster initially told Detective Conkel she had agreed to drive an unknown
Scioto App. No. 17CA3796 5
man to Scioto County to pick up money that was owed to him by a friend.
During the interview, Ms. Foster told her she stopped at the McDonald’s in
Rosemount to get a drink through the drive-thru, at which point the man
used her phone to call his friend to make arrangements, but that the friend
did not answer. She further told her that the man then left for about fifteen
to twenty minutes, but that she didn’t know where he went. When he came
back, he gave her directions over what appeared to be Rosemount Road and
towards the area where Officer Carver was stationed. She explained that she
was initially the driver of the vehicle and that she drove off after the traffic
stop because the man held a gun to her.
{¶6} Upon further investigation, which included listening to jail calls,
talking to someone who claimed to be Danielle Foster’s sister, and speaking
with the jail in Dayton, Ohio, where Ms. Foster had been held on a previous
occasion, Detective Conkel confronted Ms. Foster again and stated she knew
Appellant, Toby Lamb, II, was the individual that was with her. Ms. Foster
admitted the same. Subsequent investigation, which included obtaining a
DNA standard from Appellant, and testing of the items recovered from the
vehicle, revealed that Appellant’s DNA was located on the thumb of one of
the gloves found in the car. While Appellant’s DNA was not found on the
Scioto App. No. 17CA3796 6
sweatshirt, he could not be excluded as a wearer of the shirt. No DNA
testing was performed on the gun.
{¶7} Based upon these events and this evidence, Appellant, Toby
Lamb II, was indicted on November 19, 2015, for one count of aggravated
robbery, a first degree felony in violation of R.C. 2911.01(A)(1) and (C),
along with a firearm specification pursuant to R.C. 2941.145(A). He was
also indicted for one count of failure to comply with the order or signal of a
police officer, a third degree felony in violation of R.C. 2921.331(B) and
(C)(5)(a)(ii), and one count of receiving stolen property, a fourth degree
felony in violation of R.C. 2913.51(A) and (C). Appellant was not
apprehended until June 17, 2016. Appellant was thereafter arraigned and
counsel was appointed. The matter proceeded to a jury trial on March 6,
2017.1
{¶8} The record reveals that although the trial initially began and a
jury was selected and seated on March 6, 2017, the trial judge came under a
disability and the trial was not reconvened until March 13, 2017. Further,
when the trial was reconvened, a visiting judge took over the case and heard
the trial. The State introduced several witnesses at trial, including: 1)
1
Despite being represented by counsel, Appellant filed two pro se motions prior to trial, including a motion
to suppress and a motion for an evidentiary hearing. These motions were not disposed of until the trial
court struck them from the record after the trial.
Scioto App. No. 17CA3796 7
Andrea Meddock, the hotel clerk; 2) Deputy Brian Nolan, the Scioto County
Sheriff’s Deputy who first responded to the hotel and who later inventoried
the vehicle; 3) Officer Josh Carver, the New Boston Police Officer who was
involved in the high-speed chase; 4) Danielle Foster, Appellant’s co-
defendant; 5) Detective Dan Malone, the evidence officer with the Scioto
County Sheriff’s Department; 6) Devonie Herdeman, a forensic scientist in
the DNA Section at the Ohio Bureau of Criminal Identification and
Investigation (BCI); and 7) Detective Jodi Conkel, who interviewed Danielle
Foster at the jail and later obtained DNA samples from Appellant. Appellant
introduced only one witness, his son, Toby Lamb, III, who testified that his
father had attended his freshman football game on the night in question, had
stayed the night with him and his mother and then took him to school the
next morning at 7:00 a.m. He also admitted on cross-examination that his
mother owns a maroon Pontiac Bonneville and that it was reported stolen
sometime between October 14 and October 16, 2015.
{¶9} The record further reveals that because it was the original trial
judge’s practice to do so, thirteen jurors were initially seated on the jury,
rather than twelve, with the practice of randomly selecting one juror to be
eliminated as an alternate prior to the start of deliberations. When it was
time to eliminate the alternate juror, a number was drawn out of a basket,
Scioto App. No. 17CA3796 8
and the juror whose number was drawn was the only African-American on
the jury. At that point, defense counsel objected. However, the juror was
eliminated and the matter was submitted to the remaining jurors. Appellant
was ultimately convicted of aggravated robbery, with a firearm specification,
and failure to comply with an order or signal of a police officer, as charged
in the indictment.2 The trial court then sentenced Appellant to an aggregate
term of fifteen years in prison in an April 5, 2017 sentencing entry. It is
from this judgment entry Appellant now brings his appeal, setting forth
seven assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO PROPERLY ADVISE DEFENDANT OF A PLEA
OFFER MADE BY THE STATE OF OHIO.
II. APPELLANT'S CONVICTIONS FOR (A) AGGRAVATED
ROBBERY AND (B) FAILURE TO COMPLY WERE AGAINST
THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
IMPROPER HEARSAY EVIDENCE FROM DETECTIVE JODI
CONKEL AND/OR FAILING TO PROVIDE A PROPER
CURATIVE INSTRUCTION.
IV. APPELLANT'S SPEEDY TRIAL RIGHTS UNDER O.R.C. 2945.71
WERE VIOLATED AS A MATTER OF LAW.
2
The third count of the indictment, receiving stolen property, was orally dismissed by the State during trial
and was dismissed by the court in the written judgment entry dated March 16, 2017.
Scioto App. No. 17CA3796 9
V. A MISTRIAL SHOULD HAVE BEEN DECLARED DUE TO
IMPROPER SELECTION OF THE ALTERNATE JUROR AT
TRIAL.
VI. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHTS
TO A FAIR TRIAL WHEN HIS PRO SE MOTIONS WENT
UNADDRESSED.
VII. CUMULATIVE ERRORS COMMITTED DURING THE
APPELLANT'S TRIAL DEPRIVED HIM OF A FAIR TRIAL AND
REQUIRE REVERSAL OF HIS CONVICTIONS.”
ASSIGNMENT OF ERROR I
{¶10} In his first assignment of error, Appellant contends that his trial
counsel was ineffective in failing to properly advise him of a plea offer made
by the State of Ohio. More specifically, Appellant argues that a plea offer
was discussed the morning of the first day of trial which involved him
pleading to second degree felony robbery in exchange for a sentence of three
years and nine months. Appellant contends he advised his counsel he
wanted to "sleep on it" but that when the trial resumed a week later with a
different judge, the offer was no longer available. Thus, Appellant does not
claim his counsel failed to advise him of the terms of the plea offer, but
rather that his counsel failed to advise him of the time limit in which to
accept the plea offer. The State denies such an offer was made. Instead, the
State contends that two formal offers were made and put on the record, both
Scioto App. No. 17CA3796 10
of which were rejected by Appellant, and that neither of them involved a
sentence of three years and nine months or were made the morning of trial.
{¶11} Criminal defendants have a right to counsel, including a right
to the effective assistance from counsel. McMann v. Richardson, 397 U.S.
759, 770, 90 S.Ct. 1441 (1970); State v. Stout, 4th Dist. Gallia No. 07CA5,
2008–Ohio–1366, ¶ 21. Further, criminal defendants are entitled to effective
assistance of counsel during plea negotiations. Lafler v. Cooper, 566 U.S.
156, 162, 132 S.Ct. 1376 (2012). To establish constitutionally ineffective
assistance of counsel, a defendant must show (1) that his counsel's
performance was deficient and (2) that the deficient performance prejudiced
the defense and deprived him of a fair trial. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Issa, 93 Ohio St.3d 49, 67,
752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d
916 (1998). “In order to show deficient performance, the defendant must
prove that counsel's performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel's error, the result of the proceeding would
have been different.” State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–
2815, 848 N.E.2d 810, ¶ 95 (citations omitted). “Failure to establish either
element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,
Scioto App. No. 17CA3796 11
2008–Ohio–968, ¶ 14. Therefore, if one element is dispositive, a court need
not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–
448, 721 N.E.2d 52, (stating that a defendant's failure to satisfy one of the
elements “negates a court's need to consider the other”).
{¶12} When considering whether trial counsel's representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.” Strickland at 689. Thus, “the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. “A properly licensed
attorney is presumed to execute his duties in an ethical and competent
manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008–Ohio–
482, ¶ 10; citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128(1985). Therefore, a defendant bears the burden to show ineffectiveness by
demonstrating that counsel's errors were so serious that he or she failed to
function as the counsel guaranteed by the Sixth Amendment. State v.
Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62; State
v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).
{¶13} Furthermore, courts may not simply assume the existence of
prejudice, but must require that prejudice be affirmatively demonstrated. See
Scioto App. No. 17CA3796 12
State v. Clark, 4th Dist. Pike No. 02CA684, 2003–Ohio–1707, ¶ 22; State v.
Tucker, 4th Dist. Ross No. 01CA2592, 2002–Ohio–1597; State v. Kuntz, 4th
Dist. Ross No. 1691, 1992 WL 42774. To show prejudice from ineffective
assistance of counsel where a plea offer has lapsed or been rejected because
of counsel's deficient performance, defendants must demonstrate a
reasonable probability they would have accepted the earlier plea offer had
they been afforded effective assistance of counsel.” Missouri v. Frye, 566
U.S. 134, 145, 132 S.Ct. 1399 (2012).
{¶14} The United States Supreme Court has held that, “as a general
rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable
to the accused.” Frye at 147. Defense counsel also must provide effective
assistance when advising a defendant on whether to accept a plea offer.
Lafler at 162-170; State v. Fickenworth, 10th Dist. Franklin No. 14AP–542,
2015–Ohio–1556, ¶ 9. A defense attorney's failure to notify his client of a
prosecutor's plea offer constitutes ineffective assistance of counsel under the
Sixth Amendment and satisfies the deficient performance prong of the
Strickland test. Griffin v. United States (C.A.6, 2003), 330 F.3d 733, 737;
Johnson v. Duckworth (C.A.7, 1986), 793 F.2d 898, certiorari denied 479
U.S. 937, 107 S.Ct. 416 (1986) (criminal defense attorneys have a duty to
Scioto App. No. 17CA3796 13
inform their clients of plea bargains proffered by the prosecution; failure to
do so constitutes ineffective assistance under the Sixth and Fourteenth
Amendments).
{¶15} Here, a review of the record reveals that two formal offers
were made by the State and rejected by Appellant. There is no indication
from the record before us that an offer involving a sentence of three years
and nine months was ever made by the State. The only reference to such an
offer appears in the sentencing hearing transcript and is in the form of an
allegation made by Appellant himself. The State denies any offers, other
than the two formal offers that were put on record, were made. Further,
even if there was evidence that such an offer was made and that Appellant's
trial counsel's performance was deficient in failing to advise Appellant of the
time limit in which to accept the offer, Appellant has failed to show he was
prejudiced as a result. Appellant has not alleged, either at the sentencing
hearing when he first raised this issue, or on appeal, that he would have
actually accepted the plea offer he describes. "To establish prejudice,
appellant must show he would have accepted the plea offer had it been
communicated to him." State v. Hicks, 12th Dist. Butler No. CA2002–08–
198, 2003-Ohio-7210, ¶ 15; citing Haley v. United States (C.A.6, 2001), 3
Scioto App. No. 17CA3796 14
Fed. Appx. 426, 2001 WL 133131, certiorari denied, 534 U.S. 1031, 122
S.Ct. 568.
{¶16} Additionally, as explained in State v. Moore, 5th Dist. Stark
No. 2016CA00094, 2016-Ohio-7380, ¶ 21:
"* * * it is well settled a trial court enjoys wide discretion in
deciding whether to accept or reject a negotiated plea
agreement. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct.
495, 30 L.Ed.2d 427 (1971); Akron v. Ragsdale, 61 Ohio
App.2d 107, 109–10, 399 N.E.2d 119 (9th Dist.1978). Indeed, a
defendant has no absolute right to have a guilty plea accepted.
Santobello at 262, 92 S.Ct. 495, 30 L.Ed.2d 427; Lafler v.
Cooper, 556 U.S. [156], 132 S.Ct. 1376, 1395, 182 L.Ed.2d 398(2012)."
Thus, consistent with the reasoning in Moore, Appellant has failed to present
any evidence the trial court would have accepted the plea bargain.
Therefore, even if counsel's performance was deficient, Appellant has not
established he was prejudiced by counsel's performance. Accordingly, we
find no merit to Appellant's first assignment of error and it is overruled.
ASSIGNMENT OF ERROR II
{¶17} In his second assignment of error, Appellant contends that his
convictions for aggravated robbery and failure to comply were against the
manifest weight and sufficiency of the evidence. Appellant's arguments
primarily allege that the State failed to prove his identity in the commission
of the crimes, and that the testimony of his co-defendant, Danielle Foster, is
Scioto App. No. 17CA3796 15
unreliable and should have been viewed by the jury with grave suspicion.
The State contends that considering the accomplice testimony and other
corroborating evidence in a light most favorable to the State, the jury could
have concluded that the State's case was adequately proven. The State
further argues that the jury did not lose its way.
{¶18} “When a court reviews a record for sufficiency, ‘[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’ ” State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “The
court must defer to the trier of fact on questions of credibility and the weight
assigned to the evidence.” State v. Dillard, 4th Dist. Meigs No. 13CA9,
2014-Ohio-4974, ¶ 22; citing State v. Kirkland, 140 Ohio St.3d 73, 2014-
Ohio-1966, 15 N.E.3d 818, ¶ 132.
{¶19} In determining whether a criminal conviction is against the
manifest weight of the evidence, an appellate court must review the entire
record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the
Scioto App. No. 17CA3796 16
evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶20} “Although a court of appeals may determine that a judgment is
sustained by sufficient evidence, that court may nevertheless conclude that
the judgment is against the weight of the evidence.” Thompkins at 387. But
the weight and credibility of evidence are to be determined by the trier of
fact. Kirkland at ¶ 132. The trier of fact is free to believe all, part, or none of
the testimony of any witness, and we defer to the trier of fact on evidentiary
weight and credibility issues because it is in the best position to gauge the
witnesses' demeanor, gestures, and voice inflections, and to use these
observations to weigh their credibility. Dillard at ¶ 28; citing State v. West,
4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.
{¶21} As indicated above, Appellant was convicted of one count of
aggravated robbery with a gun specification and one count of failure to
comply with an order or signal of a police officer, both in connection with
the armed robbery of the Super 8 Motel in Scioto County and the high-speed
chase that ensued thereafter. R.C. 2911.01 defines aggravated robbery and
provides, in pertinent part, as follows:
Scioto App. No. 17CA3796 17
"(A) No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing
immediately after the attempt or offense, shall do any of the
following:
(1) Have a deadly weapon on or about the offender's person or
under the offender's control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it[.]"
Additionally, R.C. 2941.145 governs specifications concerning use of
firearms to facilitate offenses and provides, in pertinent part, as follows:
“(A) Imposition of a three-year mandatory prison term upon an
offender under division (B)(1)(a)(ii) of section 2929.14 of the Revised
Code is precluded unless the indictment, count in the indictment, or
information charging the offense specifies that the offender had a
firearm on or about the offender's person or under the offender's
control while committing the offense and displayed the firearm,
brandished the firearm, indicated that the offender possessed the
firearm, or used it to facilitate the offense. * * *”
{¶22} Further, R.C. 2921.331 defines failure to comply with an order
or signal of a police officer and provides, in pertinent part, as follows:
"(B) No person shall operate a motor vehicle so as willfully to
elude or flee a police officer after receiving a visible or audible
signal from a police officer to bring the person's motor vehicle
to a stop.
***
(C)(1) Whoever violates this section is guilty of failure to
comply with an order or signal of a police officer.
***
(5)(a) A violation of division (B) of this section is a felony of
the third degree if the jury or judge as trier of fact finds any of
the following by proof beyond a reasonable doubt:
***
(ii) The operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or
property."
Scioto App. No. 17CA3796 18
{¶23} Here, Appellant essentially contends that the State did not
prove his identity as the perpetrator of the crimes at issue. He does not
argue the State failed to prove any of the specific elements of these offenses,
but instead argues the State failed to prove he was the person who
committed the crimes. However, viewing the evidence in a light most
favorable to the State, the jury was presented with the following testimony
and evidence at trial: 1) hotel clerk Andrea Meddock testified an African-
American male wearing a hunter green sweatshirt and clear plastic gloves
presented himself at the Super 8 Motel on the night in question, holding a
silver pistol and demanded money; 2) law enforcement testimony that a
high-speed chase ensued thereafter on a curvy, winding road at night which
resulted in a vehicle crash, and a subsequent search of the vehicle yielded a
hunter green sweatshirt and clear plastic gloves; 3) DNA testing performed
on these items revealed Appellant's DNA on one of the gloves, but did not
indicate Appellant's DNA was on the sweatshirt; 4) expert testimony
explained the lack of Appellant's DNA on the sweatshirt does not eliminate
him as wearer of the shirt; 5) co-defendant Danielle Foster testified at trial
and identified Appellant as the individual with her in the car on the night at
issue, stating she parked at a McDonald's (which evidence revealed was
right near the Super 8 Motel) and waited on him while he exited the car and
Scioto App. No. 17CA3796 19
later returned, and then became involved in a high-speed chase; and 6) the
vehicle involved in the high-speed chase, which contained an item with
Appellant’s DNA on it, was owned by Appellant’s son’s mother, who had
reported the car stolen some time between October 14 and October 16, 2015.
The jury also viewed videos of the hotel surveillance system and the cruiser
cam and body cam footage from the officer involved in the high-speed
chase.
{¶24} We find that the jury could have reasonably concluded, based
upon this evidence, that the State proved each and every element of the
offenses at issue, and proved Appellant was the individual who committed
these offenses. Despite Appellant's argument that Danielle Foster's
testimony should have been discounted, a review of the record reveals that
the trial court properly instructed the jury with regard to its consideration of
accomplice testimony as follows:
"The testimony of an accomplice does not become inadmissible
because of his or her complicity, moral turpitude, or self-
interest, but the admitted or claimed complicity of a witness
may affect his or her credibility and make that testimony
subject to grave suspicion, and require that it be weighed with
great caution."
Despite this admonition, it is clear the jury weighed the evidence and
testimony, including the accomplice testimony in favor of the State, which
was within its province to do as the trier of fact.
Scioto App. No. 17CA3796 20
{¶25} In light of the foregoing, we cannot conclude that Appellant's
convictions are against the manifest weight of the evidence, that the jury lost
its way, or that Appellant's convictions were such a manifest miscarriage of
justice that they must be reversed. Moreover, “[w]hen an appellate court
concludes that the weight of the evidence supports a defendant's conviction,
this conclusion necessarily also includes a finding that sufficient evidence
supports the conviction.” State v. Adkins, 4th Dist. Lawrence No. 13CA17,
2014-Ohio-3389, ¶ 27. Having already determined that Appellant's
convictions are not against the manifest weight of the evidence, we
necessarily reject Appellant's additional claim that his convictions are not
supported by sufficient evidence. Therefore, Appellant's second assignment
of error is overruled.
ASSIGNMENT OF ERROR III
{¶26} In his third assignment of error, Appellant contends the trial
court abused its discretion in admitting improper hearsay evidence from
Detective Jodi Conkel and/or failing to provide a proper curative instruction.
Appellant more specifically argues that Detective Conkel was improperly
permitted to testify to statements made to her by Appellant's co-defendant,
Danielle Foster, Danielle Foster's sister (who did not testify at trial), and also
regarding her investigation which revealed Appellant had visited Ms. Foster
Scioto App. No. 17CA3796 21
while she was in jail in Dayton, Ohio. The State argues this testimony was
merely cumulative to the trial testimony provided by Danielle Foster and
already heard by the jury and that the admission of the Conkel’s additional
testimony was harmless error.
{¶27} “A trial court has broad discretion in the admission or
exclusion of evidence, and so long as such discretion is exercised in line
with the rules of procedure and evidence, its judgment will not be reversed
absent a clear showing of an abuse of discretion with attendant material
prejudice to defendant.” State v. Richardson, 4th Dist. Scioto No.
14CA3671, 2015-Ohio-4708, ¶ 62; quoting State v. Green, 184 Ohio App.3d
406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Absent an abuse of
discretion, an appellate court will not disturb a trial court's ruling regarding
the admissibility of evidence. State v. Linkous, 4th Dist. Scioto No.
12CA3517, 2013-Ohio-5853, ¶ 22; citing State v. Martin, 19 Ohio St.3d
122, 129, 483 N.E.2d 1157 (1985). To constitute an abuse of discretion, the
trial court's decision must be unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶28} With respect to the question of whether the trial court abused
its discretion in failing to provide a curative instruction after the objection
was finally made, we note the decision to give or refuse to give jury
Scioto App. No. 17CA3796 22
instructions is within the trial court's sound discretion. Columbia Gas of
Ohio, Inc. v. R.S.V. Inc., 7th Dist. Jefferson No. 05JE29, 2006-Ohio-7064, ¶
55; State v. McCleod, 7th Dist. Jefferson No. 00JE8, 2001 WL 1647305(Dec. 12, 2001); citing State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d
443 (1989). Thus, we will not reverse a verdict on this basis absent a trial
court's abuse of discretion. An inadequate instruction that misleads the jury
constitutes reversible error. Taylor, supra; citing Marshall v. Gibson, 19
Ohio St.3d 10, 12, 482 N.E.2d 583 (1985). However, a defendant's “failure
to object to improprieties in jury instructions waives error on appeal absent
plain error.” State v. Johnson, 40 N.E.3d 628, 2015-Ohio-3248, 40 N.E.3d
628, ¶ 112; quoting State v. Canter, 10th Dist. Franklin No. 01AP–531, 2002
WL 452461 (Mar. 26, 2002); citing State v. Morrison, 10th Dist. Franklin
No. 01AP–714, 2001 WL 1662020 (Dec. 31, 2001). See also State v. Lewis,
4th Dist. Ross No. 14CA3467 2015-Ohio-4303.
{¶29} Here, the record reveals and Appellant concedes his trial
counsel did not object to the complained-of portion of Detective Conkel's
testimony until well after it was given and heard by the jury. The record
further reveals that trial counsel did not request the trial court provide a
curative instruction to the jury. Thus, these alleged errors may only be
reviewed for plain error. Therefore, we are further governed by Crim.R.
Scioto App. No. 17CA3796 23
52(B). “To constitute plain error, a reviewing court must find (1) an error in
the proceedings, (2) the error must be a plain, obvious or clear defect in the
trial proceedings, and (3) the error must have affected ‘substantial rights'
(i.e., the trial court's error must have affected the trial's outcome).” State v.
Lewis, supra, at ¶ 9; quoting State v. Dickess, 174 Ohio App.3d 658, 2008-
Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill, 92 Ohio St.3d
191, 749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002). “Furthermore, notice of plain error must be taken with
the utmost caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice.” Lewis, supra; citing State v. Landrum, 53
Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “A
reviewing court should notice plain error only if the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id.{¶30} Hearsay is defined as, “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Evid.R. 801(C). Hearsay is inadmissible at
trial, unless it falls under an exception to the Rules of Evidence. Evid.R.
802. Evid.R. 801(D)(2)(a) provides that a statement is “not hearsay” if,
“The statement is offered against a party and is * * * the party's own
Scioto App. No. 17CA3796 24
statement * * *.” The statements at issue herein are not Appellant's own
statements, but rather are statements allegedly made by Appellant's co-
defendant to law enforcement during the investigation of the offenses herein,
as well as statements made by Appellant's co-defendant's sister implicating
him.
{¶31} A review of the record indicates that Danielle Foster, although
a co-defendant, testified at trial and was subject to cross-examination. Thus,
as the State argues, the testimony given by Detective Conkel regarding
statements made by Ms. Foster were largely cumulative to the testimony
provided by Ms. Foster at trial. Therefore, we cannot conclude that it
changed the outcome of the trial and resulted in plain error. With respect to
Detective Conkel's testimony regarding her investigation of the crimes
which led her to the discovery that Appellant had visited Ms. Foster
previously when she was jailed in Dayton, we do not find this testimony
constituted hearsay. It appears Detective Conkel's testimony served to
illustrate and explain the steps taken during the course of her investigation,
leading up to the point in which Appellant was charged. “[I]t is well-settled
that statements offered by police officers to explain their conduct while
investigating a crime are not hearsay because they are not offered for their
truth, but rather, are offered as an explanation of the process of
Scioto App. No. 17CA3796 25
investigation.” State v. Spires, 4th Dist. Gallia No. 10CA10, 2011–Ohio–
3661, ¶ 13; quoting State v. Warren, 8th Dist. Cuyahoga No. 83823, 2004–
Ohio–5599 at ¶ 46; citing State v. Price, 80 Ohio App.3d 108, 110, 608
N.E.2d 1088 (1992); State v. Braxton, 102 Ohio App.3d 28, 49, 656 N.E.2d
970 (1995); State v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d 1105(1987). Thus, we find no error, let alone plain error, related to the admission
of these statements.
{¶32} Finally, we agree with Appellant that Detective Conkel's
testimony indicating Danielle Foster's sister reported that Appellant was
with Ms. Foster on the night of the crimes constituted improper hearsay and
should not have been admitted into evidence, and that the facts presented
herein are very similar to the facts we considered in State v. Gerald, 4th
Dist. Scioto No. 12CA3519, 2014-Ohio-3629. As noted in Gerald, although
the admission or exclusion of evidence generally rests in the discretion of
the trial court, “questions concerning evidentiary issues that also involve
constitutional protections, including confrontation clause issues, should be
reviewed de novo.” Gerald at ¶ 59; citing State v. Jeffers, 4th Dist. No.
08CA7, 2009–Ohio–1672, ¶ 17; citing State v. Hardison, 9th Dist. Summit
No. 23050, 2007–Ohio–366.
Scioto App. No. 17CA3796 26
{¶33} The Sixth Amendment to the United States Constitution
provides, “[i]n all criminal prosecutions, the accused shall enjoy the right
* * * to be confronted with the witnesses against him.” The Supreme Court
of the United States has “held that this bedrock procedural guarantee applies
to both federal and state prosecutions.” Crawford v. Washington, 541 U.S.
36, 42, 124 S.Ct. 1354 (2004); citing Pointer v. Texas, 380 U.S. 400, 406, 85
S.Ct. 1065 (1965). Likewise, Section 10, Article I of the Ohio Constitution
provides, “[i]n any trial, in any court, the party accused shall be allowed * *
* to meet the witnesses face to face.” Before its admission, “[w]here
testimonial evidence is at issue * * * the Sixth Amendment demands what
the common law required: unavailability and a prior opportunity for cross
examination.” Crawford at 68.
{¶34} The threshold inquiry is whether the challenged out-of-court
statements were testimonial in nature and needed to be tested by
confrontation. See State v. Lewis, 1st Dist. Hamilton Nos. C–050989 and
C060010, 2007–Ohio–1485, ¶ 30. Statements are “testimonial when the
circumstances objectively indicate that there is no * * * ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later prosecution.” Davis v. Washington, 547
U.S. 813, 822, 126 S.Ct. 2266 (2006); see also State v. Stahl, 111 Ohio St.3d
Scioto App. No. 17CA3796 27
186, 2006–Ohio–5482, 855 N.E.2d 834, paragraph one of the syllabus.
Here, similar to Gerald, there was no ongoing emergency, but rather, the
circumstances indicate that the purpose of Detective Conkel’s conversation
with Danielle Foster's sister was to prove past events relevant for later
prosecution. Therefore, we find the statements at issue to be testimonial.
{¶35} As noted in Gerald at ¶ 62, however, Confrontation Clause
violations are subject to harmless error analysis. See State v. Kraft, 1st Dist.
Hamilton No. C–060238, 2007–Ohio–2247, ¶ 67; citing United States v.
Summers, 414 F.3d 1287, 1303 (10th Cir.2005). “A constitutional error can
be held harmless if we determine that it was harmless beyond a reasonable
doubt.” State v. Conway, 108 Ohio St.3d 214, 2006–Ohio–791, 842 N.E.2d
996, ¶ 78; citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824(1967). However, the question of whether a Sixth Amendment error was
harmless beyond a reasonable doubt is not simply an inquiry into the
sufficiency of the remaining evidence. Conway at ¶ 78. Rather, it is a
question of whether there is a reasonable possibility that the evidence
complained of might have contributed to the convictions. Id.; citing
Chapman at 23.
{¶36} Here, Detective Conkel testified Appellant's co-defendant's
sister told her that Appellant was the person with Danielle Foster on the
Scioto App. No. 17CA3796 28
night at issue, thus implicating Appellant in the crimes. These statements
constituted impermissible hearsay and should not have been admitted at trial
and further, no curative or limiting instruction was requested or given. In
Gerald, the focus of our analysis was on statements allegedly made by co-
defendants that were repeated to the jury through Detective Conkel's
testimony, and those co-defendants did not testify at trial and were not
subject to cross-examination. Even so, we found the admission of the
improper co-defendant testimony to be harmless beyond a reasonable doubt
in Gerald in light of the fact we had already determined, without relying on
the improper hearsay testimony, that Gerald's convictions were not against
the manifest weight of the evidence. Gerald at ¶ 68.
{¶37} The focus of this portion of our analysis is not co-defendant
statements admitted through law enforcement testimony of a co-defendant
that did not testify at trial, as in Gerald, but rather the co-defendant's sister's
statements, which were made to Detective Conkel during the course of her
investigation. Nevertheless, we find the admission of Danielle Foster's
sister's statements to be harmless beyond a reasonable doubt in light of the
other evidence introduced by the State to establish Appellant's guilt, as
discussed above, as well as our finding, much like in Gerald, that
Appellant's convictions were not against the manifest weight of the
Scioto App. No. 17CA3796 29
evidence. Further, in light of our plain error standard of review and Ms.
Foster’s testimony that Appellant was with her on the night these offenses
occurred, as well as the DNA evidence linking Appellant to gloves matching
the description of those worn during the robbery and found in the vehicle
after the high-speed chase, we cannot conclude that admission of the co-
defendant’s sister’s statement changed the outcome of the trial.
Accordingly, we reject Appellant's argument that the trial court abused its
discretion, or as we have discussed, committed plain error, in admitting this
hearsay testimony and failing to provide, sua sponte, a curative instruction.
{¶38} Appellant further contends his trial counsel was ineffective for
failing to object sooner and for failing to request a curative instruction. As
set forth above, in order to establish constitutionally ineffective assistance of
counsel, a defendant must show (1) that his counsel's performance was
deficient and (2) that the deficient performance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, supra, at 687; State v.
Issa, supra, at 67; State v. Goff, supra, at 139. “In order to show deficient
performance, the defendant must prove that counsel's performance fell
below an objective level of reasonable representation. To show prejudice,
the defendant must show a reasonable probability that, but for counsel's
error, the result of the proceeding would have been different.” State v.
Scioto App. No. 17CA3796 30
Conway, supra, at ¶ 95 (citations omitted). “Failure to establish either
element is fatal to the claim.” State v. Jones, supra, at ¶ 14. Therefore, if
one element is dispositive, a court need not analyze both. State v. Madrigal,
supra, at 389.
{¶39} Here, we have already found that the admission of testimony
constituting hearsay, as well as testimony regarding the steps taken in
Detective Conkel's investigation, did not change the outcome of the trial or
result in plain error. We found likewise with respect to the failure to give a
curative instruction. Having found none of these errors changed the
outcome of the trial or resulted in plain error, we similarly conclude
Appellant has not proven the prejudice required in order to demonstrate a
claim of ineffective assistance of counsel. Accordingly, this alternative
argument raised under Appellant's third assignment of error is also without
merit. Having found no merit in the arguments raised under this assignment
of error, it is overruled.
ASSIGNMENT OF ERROR IV
{¶40} In his fourth assignment of error, Appellant contends that his
speedy trial rights under R.C. 2945.71 were violated as a matter of law. The
State contends that this assignment of error should be overruled because
Scioto App. No. 17CA3796 31
Appellant was brought to trial within speedy trial limits. Based upon the
following, however, we disagree with the arguments of both parties.
{¶41} R.C. 2945.73(B) states, “[u]pon motion made at or prior to the
commencement of trial, a person charged with an offense shall be
discharged if he is not brought to trial within the time required by sections
2945.71 and 2945.72 of the Revised Code.” This Court has previously
concluded that the statute requires the accused to file a motion to dismiss
based upon speedy trial grounds prior to trial. State v. Jones, 4th Dist.
Lawrence No. 07CA2, 2008-Ohio-304, ¶ 19; citing State v. Thompson, 97
Ohio App.3d 183, 186-187, 646 N.E.2d 499 (1994); see also State v. Ross,
4th Dist. Ross No. 04CA2780, 2005-Ohio-1888, ¶ 20. Here, Appellant does
not argue and there is no evidence in the record indicating that he filed a
motion to dismiss based upon speedy trial grounds prior to trial. His failure
to do so results in a waiver of the issue on appeal. Id.; see also State v.
Talley, 5th Dist. Richland No. 06CA93, 2007-Ohio-2902 (refusing to
conduct plain error analysis when defendant failed to file a motion to
dismiss on speedy trial grounds); State v. Hurst, 4th Dist. Washington No.
08CA43, 2009-Ohio-3127, ¶ 52; State v. Ross, 4th Dist. Ross No.
04CA2780, 2005-Ohio-1888, ¶ 19.
Scioto App. No. 17CA3796 32
{¶42} Accordingly, based upon the foregoing reasons, we hereby
overrule Appellant's fourth assignment of error.
ASSIGNMENT OF ERROR V
{¶43} In his fifth assignment of error, Appellant contends that a
mistrial should have been declared due to improper selection of the alternate
juror at trial. We initially note that Appellant failed to request a mistrial at
the trial court level and has therefore forfeited the issue, absent plain error.
State v. Ellison, 2017-Ohio-284, 81 N.E.3d 853, ¶ 26; citing State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152; State v. Fouts,
4th Dist. Washington No. 15CA25, 2016-Ohio-1104 ¶ 58 (“Failure to object
constitutes forfeiture of any challenges on appeal except for plain error”).
{¶44} The test for plain error is stringent. State v. Mullins, 4th Dist.
Scioto No. 15CA3716, 2016-Ohio-5486, 2016 WL 4441250, ¶ 30. A party
claiming plain error has the burden of demonstrating that (1) an error
occurred, (2) the error was obvious, and (3) the error affected the outcome of
the trial. Id. at ¶ 30; citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,
880 N.E.2d 31. “We will notice plain error ‘only to prevent a manifest
miscarriage of justice.’ ” Fouts at ¶ 59; quoting State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “Reversal is
warranted only if the outcome of the trial clearly would have been different
Scioto App. No. 17CA3796 33
absent the error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274(2001).
{¶45} As set forth above, this jury trial began with one judge, and had
to be completed by a visiting judge because the original judge was unable to
continue after the first day of trial, due to sudden illness or disability. A
review of the record indicates that this particular trial court's procedure
involves the seating of thirteen jurors instead of twelve for the entire trial,
based upon the rationale that alternate jurors who are selected prior to trial
may not pay close attention, and sometimes even sleep, during the trial.
Rather than identifying the alternate juror at the beginning of trial, the court
randomly draws a number out of a basket at the close of evidence and prior
to deliberations, and eliminates the juror whose number is drawn. In this
particular case, employing this procedure resulted in the elimination of the
only African-American on the panel as the alternate juror.
{¶46} Further review of the record reveals that the original trial judge
explained this procedure on the record at the time the jury was initially
seated, and that Appellant failed to object to the procedure in general at that
time. Because thirteen jurors had already been seated when the visiting
judge took over the case, the new judge had to continue with this jury
procedure. The record further reveals that Appellant failed to object to the
Scioto App. No. 17CA3796 34
visiting judge employing the court's procedure at the time the alternate juror
was actually eliminated just prior to deliberations. In fact, the record reveals
that Appellant did not object until it was determined that the juror to be
designated as the alternate was the only African-American on the jury.
Additionally, there is no evidence that Appellant moved the court for a
mistrial during the discussions that ensued on the record after the objection
was made.
{¶47} During the discussion after the objection was made, the
following exchange occurred:
"Mr. Meadows: I know this is the way it's normally done,
but –
The Court: I know.
Mr. Meadows: -- just for the record I want to enter an
objection that we're
The Court: I know. I know.
Mr. Meadows: -- suddenly stricken the only African
American on the jury.
Mr. Tieman: I know.
Mr. Meadows: It raises -- if flies in the face of (inaudible)
and it's –
The Court: I know. This may be a good case to
challenge the system.
Scioto App. No. 17CA3796 35
Mr. Meadows: It's a serious issue. If it had been one of the
other 12 jurors we wouldn't be standing
here.
The Court: I know.
***
Mr. Meadows: I -- I'll agree that's the procedure that
happened. However, you know in this case,
you know, we've never -- we -- out of all the
cases I've tried here, and I've tried a bunch
of them here, I've never had this situation
where an African American –
Mr. Tieman: Yes. Right.
Mr. Meadows: -- was stricken –
The Court: I understand. I understand.
Mr. Meadows: -- when I've got an African American client.
The Court: Yeah.
Mr. Meadows: So –
Mr. Tieman: I understand too. * * *"
Thus, it appears Appellant objected, not to the procedure in general, but to
the result of the procedure that caused the elimination of the only African-
American on the jury, noting that his client was also African American.
{¶48} Despite the fact it appears defense counsel, the State and the
visiting judge were all uncomfortable with the procedure used, this Court
has concluded on two previous occasions that systems such as this do not
Scioto App. No. 17CA3796 36
run afoul of Crim.R. 24. Crim.R. 24, which governs trial jurors, provides in
section (G)(1) "Alternate Jurors" as follows:
"Non-Capital Cases. The court may direct that not more than
six jurors in addition to the regular jury be called and impaneled
to sit as alternate jurors. Alternate jurors in the order in which
they are called shall replace jurors who, prior to the time the
jury retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties. Alternate jurors
shall be drawn in the same manner, have the same
qualifications, be subject to the same examination and
challenges, take the same oath, and have the same functions,
powers, facilities, and privileges as the regular jurors. The court
may retain alternate jurors after the jury retires to deliberate.
The court must ensure that a retained alternate does not discuss
the case with anyone until that alternate replaces a juror or is
discharged. If an alternate replaces a juror after deliberations
have begun, the court must instruct the jury to begin its
deliberations anew. Each party is entitled to one peremptory
challenge in addition to those otherwise allowed if one or two
alternate jurors are to be impaneled, two peremptory challenges
if three or four alternate jurors are to be impaneled, and three
peremptory challenges if five or six alternative jurors are to be
impaneled. The additional peremptory challenges may be used
against an alternate juror only, and the other peremptory
challenges allowed by this rule may not be used against an
alternate juror."
{¶49} In State v. Parish, 4th Dist. Washington Nos. 05CA14,
05CA15, 2005-Ohio-7109, this Court was presented with a very similar
question, which challenged the trial court's practice of using a computer
game to generate a random number in order to choose the alternate juror at
the end of the case. We ultimately held that although the trial court's
procedure was not ideal (suggesting that the better practice was "to draw a
Scioto App. No. 17CA3796 37
random number from a pill bottle or a hat, etc."), it did not constitute error,
plain or otherwise. Id. at ¶ 19. We further found no error or violation of
Crim.R. 24 in selecting the juror at the end of the case, noting as follows:
"In fact, the American Bar Association recommends selecting
alternate jurors at the conclusion of the case. See 'American Bar
Association, Adopted by the House of Delegates,' February 14,
2005, Principle 11, Section G.7 (stating that '[t]he status of
jurors as regular jurors or as alternates should be determined
through random selection at the time for jury deliberation'). We
agree with the trial court's rationale that selecting the alternate
juror at the close of evidence rather than prior to opening
statements encourages all jurors to pay careful attention to the
evidence adduced at trial." Id. at ¶ 20.
We reached the same result in State v. Plessinger, 4th Dist. Washington No.
05CA48, 2006-Ohio-2594, ¶ 2 (summarily rejecting an identical argument
on the authority of Parish, supra.).
{¶50} Here, the trial court used a more preferred method of drawing a
number out of a basket, as alluded to in Parish, rather than using a computer
game to generate a random number. Further, in light of our reasoning in
Parish, there are legitimate reasons to conclude waiting until the end of the
case to select the alternate juror, as demonstrated by the stance taken by the
American Bar Association. In light of the foregoing, we find no plain error
with respect to the trial court's procedure for selecting the alternate juror in
this case.
Scioto App. No. 17CA3796 38
{¶51} Appellant also argues that the trial court's alternate juror
selection procedure, in this case, deprived him of equal protection of the law,
much like the U.S. Supreme Court held in prohibiting preemptory challenges
for jurors based on race in the decision of Batson v. Kentucky, 476 U.S. 79,
106 S.Ct. 1712 (1986). In Batson, 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 its peremptory
challenges to exclude prospective jurors solely on account of their race. Id.
at 89. A court must apply a three-step test when considering a Batson claim.
State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61.
First, the defendant must make a prima facie case of racial discrimination.
Batson at 96–97. Second, if the defendant satisfies that burden, the
prosecution must provide a racially neutral explanation for the challenge. Id.at 97–98. Third, the trial court must decide, based on all the circumstances,
whether the defendant has proved purposeful racial discrimination. Id. at 98.
At this stage, the court “must examine the prosecutor's challenges in context
to ensure that the reason is not merely pretextual.” State v. Frazier, 115 Ohio
St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. The judge must “assess
the plausibility” of the prosecutor's reason for striking the juror “in light of
all evidence with a bearing on it.” Miller–El v. Dretke, 545 U.S. 231, 252,
Scioto App. No. 17CA3796 39
125 S.Ct. 2317 (2005). A trial court's finding of no discriminatory intent
will not be reversed on appeal unless clearly erroneous. Frazier at ¶ 64; see
Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029 (2003). If a trial
court does err in applying Batson, the error is structural. United States v.
McFerron, 163 F.3d 952, 956 (6th Cir.1998).
{¶52} Thus, the Batson decision dealt with preemptory challenges in
jury selection, not the random selection of an alternate juror prior to trial, a
juror which, here, had not been challenged on the basis of race and had
actually been seated on the jury. Batson aims to prevent "purposeful racial
discrimination," as opposed to the random selection of alternate jurors,
which may be eliminated by choosing a random number without regard to
the race of the juror. We cannot conclude that Batson is directly applicable
to the facts before us, or that the spirit of Batson is offended by the alternate
juror procedure at issue. We further note that Appellant failed to object on
Batson grounds at the trial court level and instead raises this particular
argument for the first time on appeal. Because Appellant did not raise this
issue during the trial court proceedings, he may not raise it for the first time
on appeal. State v. Kerns, 4th Dist. Washington No. 99CA30, 2000 WL
310357, *2 (Mar. 21, 2000); State v. Bing, 134 Ohio App.3d 444, 731
N.E.2d 266 (9th Dist.1999); See generally State v. Quarterman, 140 Ohio
Scioto App. No. 17CA3796 40
St.3d 464, 2014–Ohio–4034, 19 N.E.3d 900, ¶ 15 (2014) (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.’ ”).
{¶53} In light of the foregoing, we find no error, let alone plain error,
in the trial court's failure to declare a mistrial related to the procedure
employed for eliminating alternate jurors prior to deliberations which
resulted, in this case, in the elimination of the only African-American juror
on the jury. Accordingly, Appellant's fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
{¶54} In his sixth assignment of error, Appellant contends he was
denied his Sixth Amendment right to a fair trial when his pro se motions
went unaddressed. More specifically, Appellant argues the trial court erred
in failing to address his pro se motion to suppress and motion for an
evidentiary hearing. Appellant suggests the fact that two different judges
presided over the trial may have resulted in confusion over what issues had
been addressed versus unaddressed. The State, however, argues that
Appellant, who was represented by counsel, was engaging in prohibited
“hybrid representation” by filing pro so motions and that the trial court
Scioto App. No. 17CA3796 41
properly struck the motions from the record on April 11, 2017, just after
trial. For the following reasons, we agree with the State.
{¶55} “It is well-established that although a defendant has the right to
counsel or the right to act pro se, a defendant does not have any right to
‘hybrid representation.’ ” State v. James, 4th Dist. Ross No. 13CA3393,
2014-Ohio-1702, ¶ 12; quoting State v. Martin, 103 Ohio St.3d 385, 2004–
Ohio–5471, 816 N.E.2d 227, paragraph one of the syllabus; see also State v.
Thompson, 33 Ohio St.3d 1, 6–7, 514 N.E.2d 407 (1987). As explained in
James, “[t]he right to counsel and the right to act pro se ‘are independent of
each other and may not be asserted simultaneously.’ ” Id; quoting Martin,
paragraph one of the syllabus.
{¶56} This Court further explained as follows in State v. James at
¶ 13:
“Appellate courts have determined that when counsel represents
a criminal defendant, a trial court may not entertain a
defendant's pro se motion. State v. Washington, 8th Dist.
Cuyahoga Nos. 96565 and 96568, 2012–Ohio–1531), ¶ 11
(‘Because [defendant] chose to proceed with legal
representation, the court could not consider [defendant]'s
motion to withdraw his plea, which his appointed counsel did
not agree with.’); State v. Pizzarro, 8th Dist. Cuyahoga No.
94849, 2011–Ohio–611, ¶ 9 (‘Had the trial court entertained
defendant's pro se motion while defendant was simultaneously
being represented by appointed counsel, this would have
effectively constituted hybrid representation in violation of the
established law.’); State v. Smith, 4th Dist. Highland No.
09CA29, 2010–Ohio–4507, ¶ 100, quoting Thompson, 33 Ohio
Scioto App. No. 17CA3796 42
St.3d at 6–7 (concluding that trial court did not err by refusing
to consider criminal defendant's pro se motions when counsel
represented defendant, because criminal defendant ‘ “has no
corresponding right to act as co-counsel on his own behalf’ ” ’);
State v. Davis, 10th Dist. Franklin No. 05AP–193, 2006–Ohio–
193, ¶ 12 (‘[W]here a defendant who is represented by counsel
files pro se motions and there is no indication that defense
counsel joins in those motions or indicates a need for the relief
sought by the defendant pro se, such motions are not proper and
the trial court may strike them from the record.’); State v.
Greenleaf, 11th Dist. Portage No.2005–P–0017, 2006–Ohio–
4317, ¶ 70, quoting Thompson, 33 Ohio St.3d at 6–7 (‘Once
appellant accepts counsel's assistance and does not move the
court to proceed pro se, he may not “act as co-counsel on his
own behalf. ” ’).”
{¶57} Here, Appellant was represented by counsel when he filed both
of his pro se motions below. Further, there is no indication from the record
before us that Appellant’s trial counsel joined in or adopted the motions.
Thus, Appellant’s pro se motions were not properly before the court. James
at ¶ 14. As set forth above, such “hybrid representation” is prohibited and
the trial court was not permitted to entertain the motions. As such, they
were properly stricken from the record. For these reasons, we find no merit
to Appellant’s sixth assignment of error. Accordingly, it is overruled.
ASSIGNMENT OF ERROR VII
{¶58} In his seventh and final assignment of error, Appellant
contends cumulative error committed during his trial deprived him of a fair
trial and require reversal of his convictions. Under the doctrine of
Scioto App. No. 17CA3796 43
cumulative error, “a conviction will be reversed where the cumulative effect
of errors in a trial deprives a defendant of the constitutional right to a fair
trial even though each of [the] numerous instances of trial court error does
not individually constitute cause for reversal.” State v. Garner, 74 Ohio
St.3d 49, 64, 656 N.E.2d 623 (1995). “Before we consider whether
‘cumulative errors' are present, we must first find that the trial court
committed multiple errors.” State v. Harrington, 4th Dist. No. 05CA3038,
2006-Ohio-4388, ¶ 57; citing Goff, 82 Ohio St.3d at 140, 694 N.E.2d 916.
{¶59} As set forth above, with the exception of one finding of
harmless error under Appellant’s third assignment of error, we have found
no merit in any of the arguments raised by Appellant on appeal. Thus, we
have found no error, plain or otherwise, that changed the outcome of the trial
or that would amount to cumulative error. Accordingly, after reviewing the
entirety of the proceedings below, we do not find Appellant's convictions
should be reversed because of cumulative error. The judgment of the trial
court is affirmed.
JUDGMENT AFFIRMED.
Scioto App. No. 17CA3796 44
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.