State v. Adams , 2016 Ohio 7772 ( 2016 )

[Cite as State v. Adams, 2016-Ohio-7772.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
: Case No. 15CA2
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
JASON M. ADAMS :
:
Defendant-Appellant. : Released: 11/10/16
_____________________________________________________________
APPEARANCES:
James S. Sweeney, James Sweeney Law, LLC, Columbus, Ohio, for
Appellant.
Brigham M. Anderson, Prosecuting Attorney, and Robert C. Anderson,
Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Jason M. Adams appeals from the final judgment entry of
conviction and sentence of the Lawrence County Court of Common Pleas,
entered December 23, 2014. A jury convicted Adams of complicity to
aggravated robbery, R.C. 2923.03/2911.01(A)(3), a felony of the first
degree. Adams raises six assignments of error, arguing: (1) that his
conviction is against the manifest weight of the evidence; (2) that the trial
court ordered an “inconsistent” sentence; (3) that the trial court committed
plain error in permitting the jury to be informed that his codefendants pled
Lawrence App. No. 15CA2 2
guilty; (4) that the trial court failed to properly advise him of post-release
control; (5) that the trial court failed to give him all the required jail time
credit; and, (6) that he was rendered ineffective assistance of counsel.
However, upon our review of the record, we find no merit to Appellant’s
arguments, except for the issue regarding his post-release control
notification. Further, the parties had resolved the issue regarding jail time
credit prior to oral arguments in this matter, so we have declined to consider
that alleged error. As such, we overrule Appellant’s assignments of error
except for assignment of error number four, which we sustain and remand
for further proceedings consistent with current case law. In all other
respects, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Jason M. Adams was indicted for one count of aggravated
robbery by the Lawrence County Grand Jury on March 25, 2014. The
indictment occurred after Charles Sam Jones (Jones) was robbed on January
14, 2014, near the Central Christian Church in the City of Ironton. On that
date, two church volunteers saw some commotion in front of the church, saw
two men running away, and saw Jones and Appellant, who appeared to have
been robbed.
Lawrence App. No. 15CA2 3
{¶3} Jones, age 77 at the time of trial, was a local “bookie.”
Appellant had placed bets with Jones for approximately four months before
the robbery. The robbery occurred at approximately 8:15 p.m. in the
evening. Sergeant Brian Pauley of the Ironton Police Department responded
to the scene. Detectives Mitch Crum and Joe Ross investigated the robbery.
{¶4} Detective Crum initially obtained surveillance video from
Ironton High School, which faintly showed the robbery taking place and
revealed the “get away” vehicle, a black Dodge Durango. Further
investigation led Detective Crum to ask Appellant to come to the police
department and give a statement, which he did. Appellant, his long-time
friend Scott Lewis, and a third man, Ed Hampton, Lewis’s uncle, were
subsequently indicted for robbing Jones.
{¶5} Appellant’s codefendants eventually entered guilty pleas and did
not proceed to trial. However, Appellant, an Iraq war veteran with no prior
criminal record and good standing in the community, proceeded to trial and
testified on his own behalf. While the State argued Appellant was the
mastermind of the scheme to rob Jones, who was known to carry large
quantities of cash on his person, Appellant denied any involvement and
maintained that he, too, was a victim of crime.
Lawrence App. No. 15CA2 4
{¶6} The State presented testimony from Jones, the
bystanders/witnesses at the church, the officers who investigated Jones’
robbery, Appellant’s codefendant Scott Lewis, and additional witnesses who
identified and explained the State’s exhibits. Essentially, Jones testified that
on the incident date, Appellant arranged an evening meeting with Jones to
pay a gambling debt. Appellant then changed the meeting place a couple of
times. When the two met at the church, Appellant paid Jones the money he
owed and talked briefly. Just after they parted, Lewis and Hampton
approached Jones, robbed him and beat him. Jones testified he immediately
felt he had been “set up” by Appellant. Jones did not know Lewis or
Hampton, but Appellant had recently given him Lewis’s name.
Interestingly, Jones testified that Appellant initially asked him to meet at the
church because it was near the Urgent Care where his wife and child were,
and he was in a hurry. However, after the money was exchanged, Appellant
made conversation and asked Jones if he would like to get a drink.
{¶7} Scott Lewis testified he and Appellant had been friends since
elementary school. While their contact had been sporadic after high school
when Appellant went into the military and Lewis moved to Wyoming, at
times the men talked 10-20 times a day. Lewis had a private cell phone and
a work phone. Prior to the incident, Lewis did not know Sam Jones.
Lawrence App. No. 15CA2 5
{¶8} Lewis testified it was Appellant’s idea to rob Jones. Lewis
testified Appellant needed money to remodel a house and after talking, the
friends agreed to do it. Appellant also asked Lewis to get his uncle, Ed
Hampton, involved. Ed Hampton had a criminal history and Appellant
indicated he would “feel more comfortable” with Hampton involved. On the
incident date, Lewis was working in West Virginia. He borrowed a co-
worker’s dark-colored Dodge Durango, drove to Ironton, and joined
Appellant for lunch at Giovanni’s.
{¶9} After leaving Giovanni’s, Lewis and Appellant spoke by cell
phone while driving around Ironton looking for Jones. Appellant described
Jones’ physical appearance, the vehicle he drove, and his daily routine
matriculating through Ironton. Lewis testified Appellant’s description of
Jones was “key on point.” Appellant also described to Lewis where Jones
kept his money: “Smaller bills in his right pocket, larger bills, hundred and
fifties in his left pocket and he carried large sums of cash on him * * *.”
Lewis drove around Ironton until it got dark. Then he picked up Ed
Hampton.
{¶10} Appellant joined Lewis and Hampton at Johnny on the Spot on
Second Street. Then they went to the Dollar General to purchase toy guns to
use to scare Jones. While the original plan was for Appellant to meet Jones
Lawrence App. No. 15CA2 6
at Johnny on the Spot, Appellant felt there were too many people there, so
they changed the meeting place to Central Christian. Adams drove his own
vehicle to the church. Lewis and Hampton parked at the old Ironton High
School parking lot and walked to the church. Because there were people in
the back, Appellant changed the meeting with Jones to the front.
{¶11} After Appellant and Jones concluded business and Appellant
walked away, Ed Hampton approached Jones from the front and demanded
his money. Lewis was behind. Jones started to fall and Hampton rushed to
get into his left pocket. Lewis testified Appellant rushed back and pretended
he was helping Jones. Then Appellant and Ed Hampton had a “staged” fight
during which Appellant fell and pretended he was hurt. Lewis saw Hampton
hit Jones, so he ran towards the truck. As Lewis ran, he heard someone
yelling that the police were on their way.
{¶12} The State’s exhibits admitted at trial included surveillance film
from Ironton High School; phone records between Appellant and Lewis on
January 13th, 14th, and 15th, 2014; Appellant’s initial statement to the
responding officers; Appellant’s recorded statement at the police
department; surveillance film from Dollar General Store; and photographs of
Jones’ facial injuries after the robbery occurred.
Lawrence App. No. 15CA2 7
{¶13} The defense strategy at trial was to cast Appellant as the model
citizen while casting doubt on the credibility of the Ironton police officers
and Scott Lewis. Appellant’s testimony began by telling the jury that he was
married to his high school girlfriend. They had been together since 1999
and had three children. He joined the United States Marine Corps in 2002,
spent two years in combat in Iraq, and was honorably discharged. He also
had some course work through Hocking College. Appellant had a good
work record and was currently employed with the federal prison system in
Kentucky.1 Appellant was involved with little league football, basketball,
and baseball and had handled the finances for the league. Appellant had no
criminal record.
{¶14} Appellant testified he began placing bets with Jones in October
2013.2 Appellant and Jones met on Tuesdays to pay. Lewis had been with
him on two occasions when he paid Jones. He testified Lewis began asking
him about placing bets with Jones and getting information about Jones,
meeting places, and Jones’ vehicle when the two went to an Ohio State
football game in October 2013.
1
Appellant testified he and his wife were currently going through divorce, due in part to the stress of his
criminal case. He also informed he had been placed on administrative leave from his job since he had been
arrested.
2
He testified Detective Crum placed bets with Jones through a third person.
Lawrence App. No. 15CA2 8
{¶15} Appellant testified that Lewis called him on the January 14,
2014 and told him he was on his way to Ironton. He needed to discuss
“family issues” with Appellant. Appellant invited him to meet him for lunch
at Giovanni’s.
{¶16} Appellant testified Lewis asked him to meet at Johnny on the
Spot at 6:45. Then, they rode around and eventually Lewis asked him to go
with him to pick up Ed Hampton. Appellant had met Ed Hampton a few
times prior. As they drove, Hampton talked about seeing his kids and not
having money to buy them anything. Appellant offered to buy what he
needed so they went to Dollar General to purchase the toy guns for Ed
Hampton’s children. They then dropped Appellant off at Johnny on the
Spot. Appellant denied ever seeing Lewis again until in the courtroom.
{¶17} After Appellant was dropped off, he met Jones at the church.
They talked briefly and he paid Jones. As Appellant was walking to his
vehicle, he looked back and saw Jones on the ground with two people over
him. He did not recognize the people. He ran back to try to help Jones. The
larger individual hit him and he was knocked to the ground. He had a knot
and red place on his head. He gave a brief statement to officers at the scene.
{¶18} The next day Lewis called him and asked him to meet at Burger
King in Ashland, Kentucky. When he went there, Lewis did not show up
Lawrence App. No. 15CA2 9
but Ed Hampton did. Appellant was friends with some of the Ironton police
officers. Also on the day after the incident, Appellant was contacted by his
friends and asked to come to the police department. Appellant gave a
statement at that time. He testified he tried to answer the officers’ questions
but they kept cutting him off.
{¶19} Appellant denied planning the hit on Jones. He denied being
asked to be involved. He denied needing money to remodel. Appellant
testified there was “nothing ever discussed about hitting Sam Jones. No not
specifically.” Appellant believed, looking back, he was naive in trusting
Lewis with Jones’ information. Appellant testified he, too, was a victim of
crime and had lost $1,500.00 dollars.
{¶20} The jury convicted Appellant of complicity to aggravated
robbery on December 12, 2014. The trial court sentenced Appellant to a
nine-year prison term. This timely appeal followed.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT ENTERED A
JUDGMENT AGAINST THE APPELLANT WHEN THE
JUDGMENT WAS NOT SUPPORTED BY THE MANIFEST
WEIGHT OF THE EVIDENCE.”
A. Standard of Review
{¶21} When an appellate court considers a claim that a conviction is
Lawrence App. No. 15CA2 10
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence and all reasonable inferences,
and consider the witness credibility. State v. Pickett, 4th Dist. Athens No.
15CA13, 2016-Ohio-4593, ¶ 26; State v. Dean, 2015-Ohio-4347, ¶ 151,
citing Thompkins, 78 Ohio St.3d at 387. A reviewing court must bear in
mind, however, that credibility generally is an issue for the trier of fact to
resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.
Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because
the trier of fact sees and hears the witnesses and is particularly competent to
decide “whether, and to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its determinations of
credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929
N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No.
21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd Dist.
Montgomery No. 16288 (Aug. 22, 1997).
{¶22} Once the reviewing court finishes its examination, the court
may reverse the judgment of conviction only if it appears that the fact-finder,
when resolving the conflicts in evidence, “ ‘clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered .’ ” Pickett, supra, at 27, quoting Thompkins, 78
Lawrence App. No. 15CA2 11
Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). If the prosecution presented substantial credible
evidence upon which the trier of fact reasonably could conclude, beyond a
reasonable doubt, that the essential elements of the offense had been
established, the judgment of conviction is not against the manifest weight of
the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978),
syllabus, (superseded by state constitutional amendment on other grounds in
State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997)).
{¶23} “[W]hen conflicting evidence is presented at trial, a conviction
is not against the manifest weight of the evidence simply because the jury
believed the prosecution’s testimony.” State v. Cooper, 170 Ohio App.3d
418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 17, quoting State v. Mason, 9th
Dist. No. 21397, 2003-Ohio-5785, ¶ 17, quoting State v. Gilliam, 9th Dist.
No. 97CA006757, 1998 WL 487085 (Aug. 12, 1998). Moreover, a
conviction is not against the manifest weight of the evidence even if the
“evidence is subject to different interpretations.” State v. Adams, 2nd Dist.
Greene Nos. 2013CA61, 2013-CA-62, 2014-Ohio-3432, ¶ 24. Instead, a
reviewing court should find a conviction against the manifest weight of the
evidence only in the “ ‘exceptional case in which the evidence weighs
heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, quoting
Lawrence App. No. 15CA2 12
Martin, 20 Ohio App.3d at 175. Accord State v. Lindsey, 87 Ohio St.3d 479,
483, 721 N.E.2d 995 (2000).
B. Legal Analysis
{¶24} Appellant was found guilty of complicity to aggravated
robbery. The Revised Code defines the offense of aggravated robbery as
follows:
(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:
***
(3) Inflict, or attempt to inflict, serious physical harm on
another.3
{¶25} Appellant argues his conviction is not supported by the
manifest weight of the evidence as the State failed to establish either that the
victim, Sam Jones, suffered serious physical harm, or that there was an
attempt to inflict serious physical harm upon him. “Serious physical harm”
is defined under R.C. 2901.01(A)(5)(c), (d), and (e) as including harm that
produces “temporary, substantial incapacity”, “temporary, serious
3
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any
of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
Lawrence App. No. 15CA2 13
disfigurement”, or “acute pain of such duration as to result in substantial
suffering or that involves any degree of prolonged or intractable pain.” State
v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 23. The State
disputes Appellant’s argument, contending that Sam Jones suffered
“temporary, serious disfigurement” and “physical pain of such duration as to
result in substantial suffering.” The State relies on Jones’ testimony that he
was struck multiple times in the head area which resulted in the injuries
depicted in State’s Exhibits 16-19. We agree with the State. We find there
was substantial credible evidence upon which a jury could find beyond a
reasonable doubt that serious physical harm was inflicted upon Mr. Jones.
{¶26} “The degree of harm that rises to the level of ‘serious’ physical
harm is not an exact science, particularly when the definition includes such
terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’ ” State v.
Mango, 8th Dist. Cuyahoga No. 103146, 20156-Ohio-2935, ¶ 33, quoting
State v. Miller, 8th Dist. Cuyahoga No. 98574, 2013-Ohio-1651, ¶ 18,
quoting State v. Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996,
¶ 37. The statute does not define “substantial suffering”; instead, the trier-
of-fact must determine its existence from the facts of each particular case.
State v. Bell, 1989 WL 10372, (Feb. 7, 1989), *2. See State v. Daniels
(1984), 14 Ohio App.3d 41, (victim's testimony that defendant punched and
Lawrence App. No. 15CA2 14
kicked her was sufficient to prove serious physical harm); see also State v.
Spikes, 67 Ohio St.2d 405, 414, 423 N.E.2d 1122, (1981), fn.10 (dicta).
“Physical harm to persons” means “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). State
v. Henry, 8th Dist. Cuyahoga No. 10002634, 2016-Ohio-692, ¶ 40. The
extent or degree of a victim's injuries is “normally a matter of the weight
rather than the sufficiency of the evidence.” Henry, supra; Irwin at ¶ 37,
citing State v. Salemi, 8th Dist. Cuyahoga No. 81091, 2002-Ohio-7064, ¶ 34.
{¶27} Scott Lewis testified that during the altercation, he was behind
Mr. Jones, who “started to fall back” and eventually was on the ground.
Lewis testified that “when Sam went to sit up, Ed hit Sam Jones and Sam
fell back down.” Mr. Jones testified as follows:
“A. * * * That’s about that time that’s all I can remember and
the guys running and he had a hold of me before I could turn
around or anything. They had me on the ground.
Q. And were you hit?
A. Quite a few times yeah.
Q. And beat up pretty bad?
A. Beat up. . . worse I’ve ever been beat up, yeah.
Q. Describe to the jury what your injuries were from that.
A. Well I had two of them, black eyes and the side of my
face was all skinned up where they hit me and my forehead, had
Lawrence App. No. 15CA2 15
a place inside my mouth they busted, I think there was six or
eight stitches that had to be put in my lip. And um, broke my
teeth, had false teeth and they broke them. And um, I was just
lucky that um, we had two guys come around the building to
save my life by coming around and heard them say that
someone was coming. They got up off me and took off
running.
{¶28} The State’s exhibits 16, 17, 18, and 19 depict Jones’ injuries.
The photographs reveal bruising under both eye areas. Bruising is more
noticeable on the right side of Jones’ face, with obvious injuries on the right
temple, right cheekbone, and right jaw. Also visible in the photographs are
small marks on Mr. Jones’ forehead, nose, and chin, as well as an injury to
the lip area. At the time of the incident, Jones was 76 years old.
{¶29} In Scott, the defendant was charged with felonious assault and
domestic violence after an altercation with his live-in girlfriend. At trial, the
victim testified in great detail about the injuries she sustained. Specifically,
she testified that her left eye was swollen shut for three weeks following the
incident, that she broke her nose and lost teeth as a result of the incident, and
that a blood clot developed under her eye. The State corroborated the
victim’s description of her injuries by introducing photographs of them. In
Scott’s appeal challenging the proof of “serious physical harm,” we
concluded these types of injury constitute “temporary, substantial
Lawrence App. No. 15CA2 16
incapacity” and “temporary, serious disfigurement” as those words are
commonly understood.
{¶30} Courts have also determined that “serious physical harm” exists
“ ‘where the injuries caused the victim to seek medical treatment.’ ” Scott,
supra, at ¶ 3. State v. Muncy, 4th Dist. Scioto No. 11CA3434, 2012-Ohio-
4563, ¶ 23, quoting State v. Sharp, 12th Dist. Butler No. CA2009-09-236,
2010-Ohio-3470, ¶ 11. See also Mango, supra, at ¶ 34. In Scott, the
testimony established that the victim did visit a hospital. We ultimately held
that sufficient evidence of serious physical harm existed. In the case sub
judice, Sam Jones did not seek medical treatment immediately after the
incident. However, he did testify to having 6-8 stitches in his lip. We note
that on cross-examination, Appellant’s wife Nicole Adams, herself a nurse,
agreed it would have been a good idea for Jones to go to the hospital, that he
was “beaten up pretty good.” She felt his injuries were serious enough that
he needed to go to the hospital “because of his age.”
{¶31} In Henry, the defendant was charged and convicted of felonious
assault. On appeal, Henry argued there was no evidence that the victim,
Gatto, suffered from any degree of prolonged or intractable pain or was in
any way incapacitated by his cut lip or “bent in” teeth; no evidence the
victim missed any school or work or was precluded from engaging in any of
Lawrence App. No. 15CA2 17
his other ordinary activities as a result of his injury; and no evidence the
victim had a scar or any other type of permanent disfigurement. The
appellate court was left to determine whether the injury to the victim’s upper
lip “involve[d] acute pain of such duration as to result in substantial
suffering” within the meaning of R.C. 2901.01(A)(5)(e) or a “temporary,
serious disfigurement” under R.C. 2901.01(A)(5)(d).
{¶32} Photographs taken by an officer at the hospital showed Gatto
with a bloodied, swollen upper lip that appeared to be cut in two places. The
victim testified that he was in “excruciating pain” when he arrived at the
hospital and the medical records reflect that Gatto told the hospital staff that
his pain level was six out of ten at that time. The victim testified that, as
result of Henry's punch, his front teeth were “bent in,” that he received 30
stitches and that he saw the “medical surgeon” “about five times” and his
family dentist twice for his injuries. Viewing the evidence in the light most
favorable to the State, the appellate court found that the victim’s testimony,
together with the photographs and medical records introduced by the State,
was sufficient to establish that Henry caused him serious physical harm
under R.C. 2901(A)(5)(d) or (e).
{¶33} Henry also made a manifest weight challenge based on the
absence of medical evidence corroborating the victim’s testimony regarding
Lawrence App. No. 15CA2 18
the severity of his injuries and the treatment he received; the lack of
evidence of any permanent scarring; and criticisms regarding inconsistencies
in, and the lack of credibility of, Gatto’s testimony.
{¶34} The appellate court noted the severity of Gatto's injury was
unclear based on the photographs alone. Although Gatto claimed to have
needed 30 stitches in and around his lip to repair the injury, there was no
reference to Gatto having received any stitches in the medical records. Gatto
testified that as a result of the punch he received from Henry his two front
teeth were also “bent in”; however, there were no photographs of any
damage to the victim’s teeth and no testimony or other evidence in the
record explaining what the victim meant when he said that his two front
teeth were “bent in” or how, if at all, that condition was remedied. And,
although Gatto claimed to have seen the “medical surgeon” “about five
times” and his family dentist twice for the injuries he sustained, there were
no medical records documenting any of his alleged follow-up treatment and,
other than the victim’s own testimony that a “plastic surgeon” removed his
stitches without further testimony as to when that occurred what follow-up
treatment involved. The record contained only Gatto's medical records from
the emergency room where he had presented for treatment. No medical
expert or medical provider testified.
Lawrence App. No. 15CA2 19
{¶35} The appellate court acknowledged a number of credibility
issues with Gatto's testimony. However the court concluded:
“[A] defendant is not entitled to reversal on manifest weight
grounds merely because certain aspects of a witness's testimony
are not credible or were inconsistent or contradictory. See, e.g.,
State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574,
¶ 38, citing State v. Asberry, 10th Dist. Franklin No. 04AP-
1113, 2005-Ohio-4547, ¶ 11. The decision whether, and to
what extent, to believe the testimony of a particular witness is
“within the peculiar competence of the factfinder, who has seen
and heard the witness.” State v. Johnson, 8th Dist. Cuyahoga
No. 99822, 2014-Ohio-494, ¶ 54. It was, therefore, within the
province of the trial court, as the trier of fact, to believe Gatto's
testimony regarding the severity of his injuries and to find that
he sustained serious physical harm as a result of Henry's
actions. It is not our role to substitute our judgment for that of
the trial judge.”
{¶36} In Henry at 40, the appellate court acknowledged it had
“historically applie[d] a liberal interpretation of ‘serious physical harm to
persons.’ ” State v. Davis, 8th Dist. Cuyahoga No. 81170, 2002-Ohio-7068,
¶ 20. The appellate court also stated that the fact that a victim seeks medical
treatment does not alone “substantiate [ ] an inference that the victim
suffered serious physical harm” and that although “[t]he inference derived
from a victim seeking medical treatment is a proper factor to consider,” it is
“not a dispositive one.” State v. Clopton, 8th Dist. Cuyahoga No. 95297,
2011-Ohio-2392, ¶ 14-16. For an injury to constitute “serious physical
harm,” it must fall within at least one of the five categories enumerated in
Lawrence App. No. 15CA2 20
R.C. 2901.01(A)(5)(a)-(e). See, e.g., State v. Addison, 8th Dist. Cuyahoga
No. 96514, 2012-Ohio-260, ¶ 29.
{¶37} In Henry, the court was mindful that “[t]his court has
consistently held that the need for stitches constitutes serious physical harm
for purposes of a felonious assault conviction.” Id. at 42. State v. Studgions,
8th Dist. Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 10. However, the court
acknowledged in most cases, it appears that it was not simply the fact that
the victim received stitches that led the court to conclude that the victim
sustained “serious physical harm” within the meaning of R.C.
2901.01(A)(5), but rather, the fact that, as is often the case with an injury
requiring stitches, the injury and stitches led to a permanent scar or
disfigurement.4 However, the Henry court observed that serious physical
harm has been found where a victim sustains a bloody cut and/or significant
swelling to the face, even where there is no evidence stitches were required.
Henry, supra, at 42; See, e.g., State v. Payne, 8th Dist. Cuyahoga No. 76539,
4
See Studgions at ¶ 10; Williams at ¶ 10; State v. Paythress, 8th Dist. Cuyahoga No. 91554, 2009-Ohio-
2717, ¶ 6-7 (finding serious physical harm when the medical records documented that victim sustained a
three-to-four-inch cut on his face that required 60 stitches to close and victim was able to point out his
injury to the jury, “suggesting that he suffered some permanent disfigurement as a result of the attack”); see
also State v. Townsend, 9th Dist. Summit No. 24311, 2009-Ohio-3190, ¶ 10-12 (victim's testimony that
defendant slapped her, punched her in the mouth, hit her in the face and spit on her, leaving her lip bleeding
and hanging, requiring stitches and resulting in a permanent scar and lack of feeling in her lip was
sufficient to establish “serious physical harm” under R.C. 2901.01(A)(5)); State v. Edwards, 83 Ohio
App.3d 357, 360, 614 N.E.2d 1123 (1992) (where victim received 23 stitches for two-centimeter cut above
his right eyebrow, which resulted in a permanent scar, and the reopening of a one-centimeter scar on his
forehead, jury could reasonably find victim sustained some permanent disfigurement constituting “serious
physical harm”).
Lawrence App. No. 15CA2 21
2000 WL 1010969 *9-10 (July 20, 2000) (bloody, cut and swollen right eye
was sufficient to establish serious physical harm because the injury was a
temporary, serious disfigurement).
{¶38} We have reviewed the photographs of Mr. Jones’ injuries and
the testimony of various witnesses describing his injuries. At the time Mr.
Jones’ face and head were beaten, he was approximately 76 years old. Sgt.
Pauley testified when he arrived on the scene and encountered the elderly
victim, he appeared to have been “beaten up.” Pauley described “some
bleeding from one of the eyebrows, and some swelling around his eye.” Eric
Williams, one of the church witnesses, testified Mr. Jones was injured and
had “blood on his head.” Appellant’s wife testified Jones “had a busted lip,”
and was “starting to bruise.” Even she testified she had recommended he
seek medical attention.
{¶39} The photos reveal bruising on the right side of Jones’ face. In
our view, recognizing these determinations are “case by case” and “not an
exact science,” Jones’ facial bruising and lip injury constitute a temporary
serious disfigurement and pain resulting in substantial suffering. “ ‘If the
evidence is susceptible of more than one construction, the reviewing court is
bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.’ ” Id. at
Lawrence App. No. 15CA2 22
¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate
Review, Section 60, at 191-192 (1978). While the evidence here is subject
to more than one interpretation, the jury obviously found Mr. Jones’
testimony about his injuries, without the inclusion of medical records to
verify the need for 6-8 stitches, to be credible. We must afford substantial
deference to the jury’s determination of credibility.
{¶40} We find this case not to be one in which the jury clearly lost its
way so as to create a manifest miscarriage of justice. We find substantial
credible evidence that Sam Jones suffered serious physical harm. As such,
we overrule Appellant’s first assignment of error and affirm the judgment of
the trial court.
“II. THE TRIAL COURT ERRED IN IMPOSING A
SENTENCE OF NINE YEARS ON THE APPELLANT.”
A. Standard of Review
{¶41} When reviewing felony sentences we apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Taylor, 138 Ohio St.3d 194,
2014-Ohio-460, 5 N.E.3d 612, ¶ 40; State v. Marcum, 2016-Ohio-1002, –––-
N.E.3d ––––, ¶ 1. R.C. 2953.08(G)(2) specifies that an appellate court may
increase, reduce, modify, or vacate and remand a challenged felony sentence
if the court clearly and convincingly finds either that “the record does not
Lawrence App. No. 15CA2 23
support the sentencing court's findings” under the specified statutory
provisions or “the sentence is otherwise contrary to law.” Id.B. Legal Analysis
{¶42} Appellant argues the trial court erred in imposing a sentence of
nine years. Appellant points out that codefendant Scott Lewis was
sentenced to a term of five years in prison, and codefendant Ed Hampton
was sentenced to a term of six years. In support of the argument, Appellant
points out that the record established that Appellant’s codefendants were
those responsible for physically harming the victim while Appellant never
physically harmed him. Furthermore, Appellant had no felony record as
compared to Ed Hampton. As such, Appellant concludes that his sentence is
not supported by the record and is contrary to law.
{¶43} The State’s first argument in response is that Appellant failed to
raise the issue of consistency at sentencing and did not present any evidence
in the trial court about similar offenders and their sentences. The State
directs us to the transcript of Appellant’s sentencing hearing in support.
Based on the authority of State v. Miller, 2nd Dist. Clark No. 09CA28,
2010-Ohio-2138, the State contends Appellant has forfeited his ability to
raise this issue on appeal. Secondly, the State contends that the trial court
was not obligated to impose a similar sentence on Appellant because: (1)
Lawrence App. No. 15CA2 24
Appellant is the one who masterminded the robbery; (2) planned the details;
and (3) never acknowledged his guilt or any remorse. Finally, the State
argues that R.C. 2929.11(B), with its inconsistency language, has no merit
when a trial court states that it has considered the purposes and principles of
sentencing in accordance with R.C. 2929.11, 2929.12, and has weighed the
applicable factors in R.C. 2929.13 and R.C. 2929.14.
{¶44} The language of R.C. 2929.11(B) provides that a felony
sentence must be “consistent with sentences imposed for similar crimes
committed by similar offenders.” In State v. Gibson, 8th Dist. Cuyahoga
No. 98725, 2013 WL 5517927, the appellate court observed that there is no
requirement that codefendants receive equal sentences. Id. at ¶ 76, citing
State v. Wickham, 5th Dist. Muskingum No. CT2006-0084, 2007-Ohio-
1754, ¶ 29, citing State v. Lloyd, 11th Dist. Lake No. 2002-L-069, 2003-
Ohio-6417, ¶ 21 and United States v. Fry (C.A.6, 1987), 831 F.2d 664, 667.
“Each defendant is different and nothing prohibits a trial court from
imposing two different sentences upon individuals convicted of similar
crimes.” Wickham at ¶ 29, citing State v. Aguirre, 4th Dist. Gallia No.
03CA5, 2003-Ohio-4909, at ¶ 50. When that happens, “the task of the
appellate court is to determine whether the sentence is so unusual as to be
outside the mainstream of local judicial practice. We bear in mind that
Lawrence App. No. 15CA2 25
although offenses may be similar, there may be distinguishing factors that
justify dissimilar sentences.” State v. Beasley, 8th Dist. Cuyahoga No.
82884, 2004-Ohio-988, ¶ 24 (internal citation omitted).
{¶45} In Gibson, the defendant raised a “consistency” argument. The
Gibson court noted that in order to support a contention that a sentence is
disproportionate to sentences imposed upon other offenders, the defendant
must raise this issue before the trial court and present some evidence,
however minimal, in order to provide a starting point for analysis and to
preserve the issue for appeal. State v. Jones, 8th Dist. Cuyahoga No. 99121,
2013-Ohio-3141, ¶ 17, citing State v. Edwards, 8th Dist. Cuyahoga No.
89181, 2007-Ohio-6068. In Gibson, the record revealed that Gibson's
counsel did not make any proportionality argument. The appellate court
summarily overruled Gibson’s assignment of error.
{¶46} Likewise, in State v. Montanez-Roldon, 8th Dist. Cuyahoga No.
103509, 2016 WL 2941098, the appellate court observed that “[a]
consistency-in-sentencing determination, along with all sentencing
determinations pursuant to R.C. 2929.11 and 2929.12, is a fact-intensive
inquiry that does not lend itself to being initially reviewed at the appellate
level.” Id. at ¶ 14. The court held:
“[A]ny review must begin with the defendant producing a
record for the trial court's consideration before the final
Lawrence App. No. 15CA2 26
sentence is imposed. As courts have long concluded, a
“defendant must raise [the consistency-in-sentencing] issue
before the trial court and present some evidence, however
minimal, in order to provide a starting point for analysis and to
preserve the issue for appeal.” (Emphasis added.) State v.
Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37,
citing State v. Lang, 8th Dist. Cuyahoga No. 92099, 2010-Ohio-
433; State v. Picha, 8th Dist. Cuyahoga No. 102506, 2015-
Ohio-4380, ¶ 9. Without evidence provided on the record at
sentencing upon which to base an R.C. 2929 .11(B) argument
on appeal, and without any other arguments for us to consider
for the purpose of declaring Montanez–Roldon's sentence
contrary to law, we cannot review his final sentence as being
contrary to law pursuant to R.C. 2953.08(A)(4).”
{¶47} We have completely reviewed the transcript of Appellant’s
sentencing. It is true the transcript is devoid of any mention of Appellant’s
codefendants’ sentences or that Appellant’s sentence was inconsistent. As
such, we could summarily overrule the assignment of error. However, in the
interests of justice, we would point out that even a cursory review
demonstrates that the trial court weighed the purposes and principals of R.C.
2929.11 and the seriousness and recidivism factors of R.C. 2929.12. The
trial court also stated it was taking into consideration Appellant’s military
service, pursuant to R.C. 2929.14.
{¶48} Furthermore, Appellant was subject to a maximum sentence of
eleven years for aggravated robbery. The State had recommended a ten-year
sentence. The trial court noted Appellant’s previous lack of a criminal
record and his military service when it imposed the nine-year prison
Lawrence App. No. 15CA2 27
sentence. Appellant’s sentence was within the range for a felony of the first
degree. 2929.14(A)(1).
{¶49} For the foregoing reasons, we find no merit to Appellant’s
argument that his sentence was inconsistent with those of his codefendants.
We therefore overrule the second assignment of error and affirm the
judgment of the trial court.
“III. THE TRIAL COURT COMMITTED PLAIN ERROR IN
PERMITTING INFORMATION THAT APPELLANT’S
CODEFENDANTS HAD PLEAD (SIC) GUILTY.”
A. Standard of Review
{¶50} At trial, Appellant’s counsel failed to object to the introduction
of evidence that Appellant’s codefendants Scott Lewis and Ed Hampton had
already entered pleas. A failure to object at trial constitutes a waiver of all
but plain error of the issues on appeal. Gibson, supra, at ¶ 83, citing State v.
Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977). Under Crim.R.
52(B), plain errors affecting substantial rights may be noticed by an
appellate court even though they were not brought to the attention of the trial
court. Gibson supra, at ¶ 84. To constitute plain error, there must be an
error that is plain or obvious and that affected the outcome of the case. Id; In
re: J.G., 8th Dist. Cuyahoga No. 98625, 2013-Ohio-583, ¶ 10, citing State v.
Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Courts are
Lawrence App. No. 15CA2 28
to notice plain error under Crim.R. 52(B) “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Id.B. Legal Analysis
{¶51} Appellant argues that at his trial, the jury was often informed of
the fact that his codefendants Scott Lewis and Ed Hampton had already
pleaded guilty. This was pointed out in opening statements, during Lewis’
direct testimony, and during closing argument, and in the jury instructions.
Appellant argues disclosing their pleas rises to the level of plain error
because his defense was that he, too, was a victim of crime. Lewis and
Appellant had been friends since childhood. Lewis’s guilt was critical to
linking Appellant with the robbery. Appellant submits there was no valid
tactical consideration and the trial court’s limiting instruction on the
inclusion of the codefendants’ pleas were insufficient.
{¶52} In response, the State argues that it is sound and common trial
strategy by a defendant to bring to the attention of the jury that a
codefendant has already entered a plea in order to impeach the codefendant’s
testimony. The State’s purpose, which was proper, was to introduce the
evidence of codefendant’s plea in order to lessen the impact of the
information on the jury, and to let the jury know “up front,” that Lewis had a
Lawrence App. No. 15CA2 29
plea agreement with the State. The State points out that defense counsel’s
closing argument obviously and strategically utilized this information in
order to cast doubt on Lewis’s credibility.
{¶53} The Eighth Appellate District set forth a careful analysis of this
argument and the law to be applied in State v. Kartsone, 8th Dist. Cuyahoga
No. 95104, 2011-Ohio-1930. There, Kartsone was convicted of three counts
of felonious assault. Kartsone’s codefendant had entered a plea but did not
testify. At trial, Kartsone stipulated that his codefendant’s written statement
would be read to the jury. After both sides presented their cases, the State
requested the trial court to take judicial notice that the codefendant had
previously entered a guilty plea. Kartsone objected but the trial court
overruled. The trial court took judicial notice of the fact of the plea just
before closing arguments. Then in rebuttal, the State strategically
emphasized the fact of the plea. On appeal, Kartsone argued the trial court
erred to his prejudice.
{¶54} The Kartsone appellate court began by citing a long-standing
rule that information that a codefendant has pleaded guilty to or has been
convicted of an offense stemming from the same facts or circumstances
forming the basis of a prosecution against another is inadmissible as proof
against the other. Id. at 31. See Kazer v. Ohio, 5 Ohio 280, 281-282, 1831
Lawrence App. No. 15CA2 30
WL 97 (1831). This is because evidence that another pleaded guilty to or
was convicted of an offense stemming from the same facts or circumstances
is not necessarily evidence that the other committed the same offense. Id.“There are strong considerations against using a
coconspirator's guilt as substantive evidence of another
defendant's guilt. ‘The foundation of [this] policy is the right of
every defendant to stand or fall with the proof of the charge
made against him, not against somebody else * * *. The
defendant has a right to have his guilt or innocence determined
by the evidence presented against him, not by what has
happened with regard to a criminal prosecution against
someone else.’ ” Kartsone at ¶ 32, quoting State v. Smith, 148
Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, quoting
United States v. Gambino (C.A.3, 1991), 926 F.2d 1355, 1363.
The Kartsone court explained, as in United States v. Toner, 173 F.2d 140,
142 (1949): “From the common sense point of view a plea of guilty by an
alleged fellow conspirator is highly relevant upon the question of the guilt of
another alleged conspirator. If A's admission that he conspired with B is
believed, it is pretty hard to avoid the conclusion that B must have conspired
with A.” Id. at 33. However, Kartsone pointed out:
“This is not to say that evidence of a codefendant's guilty plea
is never admissible. In some circumstances, evidence of a
codefendant's guilty plea may go to the jury if its use is limited
to other purposes such as impeachment, or to show that the
state has nothing to hide in its plea agreements. See, e.g.,
United States v. King (C.A.5, 1974), 505 F.2d 602, United
States v. Hilton (C.A.11, 1985), 772 F.2d 783, 787. The test
most often used to determine the admissibility of a
codefendant's guilty plea was set forth in United States v. Casto
(C.A.5, 1989), 889 F.2d 562, 567. This test requires a
Lawrence App. No. 15CA2 31
reviewing court to consider (1) whether a limiting instruction
was given; (2) whether there was a proper purpose in
introducing the fact of the guilty plea; (3) whether the plea was
improperly emphasized; (4) whether the plea was used as
substantive evidence of guilt; and (5) whether the introduction
of the plea was invited by defense counsel.” Kartsone, supra, at
¶ 34.
{¶55} The Kartsone court analyzed the defendant’s argument and the
case law set forth in Casto, beginning with the fact that the trial court did not
instruct the jury with a limiting instruction regarding the codefendant’s
guilty plea, as well as the fact Kartsone did not request one. The Kartsone
court observed the model jury instruction of the Eighth Circuit states as
follows:
“ ‘You have heard evidence that witness (name) has pleaded
guilty to a crime which arose out of the same events for which
the defendant is on trial here. You must not consider that guilty
plea as any evidence of this defendant's guilt. You may
consider that witness's guilty plea only for the purpose of
determining how much, if at all, to rely upon that witness's
testimony.’ Id. at 38.
{¶56} The Committee Comments following this instruction provide an
explanation:
“ ‘Evidence that a codefendant has pleaded guilty may not be
used as substantive proof of a defendant's guilt. However, such
evidence is admissible to impeach, to show the witness's
acknowledgment of participation in the offense, or to reflect on
his credibility. In such circumstance the jury should be
instructed that the evidence is received for one or more of these
purposes alone, and that the jurors are not to infer the guilt of
Lawrence App. No. 15CA2 32
the defendant.’ ” (Internal citations omitted.) Smith at 280-281,
772 N.E.2d 1225 (Karpinski, J., concurring).
Kartsone, supra, at ¶ 40.
{¶57} As indicated above, Kartsone did not request a limiting
instruction. The Kartsone court noted the Second Appellate District has
held that “ ‘[t]he admission of such evidence without a limiting instruction is
not reversible error if defense counsel does not request an instruction and if
the evidence was introduced for a proper purpose.’ ” Id. at 41, quoting
Clark, supra, and Gerberding, supra.
{¶58} The appellate court determined although Kartsone did not
request a limiting instruction that did not end the analysis. The court looked
to the remaining factors to determine if the trial court erred by allowing
evidence of his codefendant’s plea to be submitted to the jury. The court
next analyzed whether or not there was a proper purpose in introducing the
evidence. “ ‘Guilty pleas of codefendants should be brought to the attention
of the jury in only certain narrow instances; i.e., when it is used to impeach
trial testimony or to reflect on a witness' credibility in accordance with the
standard rules of evidence; where other codefendants plead guilty during
trial and are conspicuously absent; where opposing counsel has left the
impression of unfairness which raises the issue or invites comment on the
Lawrence App. No. 15CA2 33
subject.’ ” Clark, supra, quoting United States v. Bryza (C.A.7, 1975), 522
F.2d 414. In Kartsone, the court found no proper purpose applied.
{¶59} Kartsone also discussed factors three and four, “improper
emphasis” or “substantive evidence.” The State emphasized it only
mentioned the plea one time during its closing argument and that it merely
reiterated what the trial court had already told the jury. However, the
appellate court was not persuaded. The court noted the State strategically
mentioned the codefendant’s plea at the end of its rebuttal closing argument
to the jury – the very last thing it argued to the jury – when it likely had the
most impact. The State specifically argued the evidence in its rebuttal
argument. After reviewing the record, the appellate court found that the
State strategically placed an improper emphasis on the plea and court held:
“The state's only purpose in mentioning [the codefendant’s]
guilty plea at that point was to provide substantive evidence of
Kartsone's guilt. The state was asking the jury to infer that
because [his codefendant] pleaded guilty, Kartsone must be
guilty. This is strictly prohibited under all circumstances.” Id.{¶60} Kartsone analyzed the final Casto factor, whether introduction
of the plea was invited by something defense counsel did. The trial court
seemed to allude to the fact that it believed defense counsel did invite the
introduction of the plea because defense counsel stipulated to the
codefendant’s statement being read to the jury. But defense counsel did not
Lawrence App. No. 15CA2 34
mention the written statement in its opening remarks or closing argument.
The appellate court found no invited error and concluded that four out of the
five Casto factors were in Kartsone's favor.
{¶61} The Kartsone court went on to determine whether the error was
harmless. Any error will be deemed harmless if it did not affect the
accused's “substantial rights.” Id. at 63. When a guilty plea of a codefendant
is brought to a jury's attention without any guiding instructions as to its use
in their deliberations, the potential for misuse is manifest. Kartsone at 70;
State v. Stefanelli (N.J.1979), 78 N.J. 418, 396 A.2d 1105, 1113. The
appellate court concluded that the error was not harmless beyond a
reasonable doubt under the facts and circumstances of the case. The court
found Kartsone was entitled to a new trial.
{¶62} While the Kartsone opinion provides us a very detailed
analysis, other cases have applied the Casto test and have done so in a more
generalized or summary fashion. In State v. Holbrook, the defendant was
convicted by a jury of complicity to commit felonious assault, complicity to
tampering with evidence, and obstructing justice. At trial, the jury had been
informed that a codefendant had already “taken his lumps.” On appeal,
Holbrook argued that the statement was prejudicial and compromised a fair
trial.
Lawrence App. No. 15CA2 35
{¶63} After discussing the test set forth in Casto and Kartsone, the
appellate court noted there was no argument concerning invited error. The
court first considered whether a limiting instruction was given and whether
the information was used as substantive evidence of guilt. The court further
noted that the challenged information was introduced in closing argument,
not during the trial.
{¶64} Upon review of the transcript, the Holbrook court found that the
trial court informed the jury, generally, that the statements of counsel in
closing arguments “are not to be considered as evidence.” Id. at 36. The
court further instructed the jury “[t]he defendant must be found not guilty
unless the State produces evidence, which convinces you beyond a
reasonable doubt of every essential element of the offense charged in the
indictment.” Id. The Holbrook court found the limiting instruction sufficient
because the information was produced in closing argument and not used as
substantive evidence of guilt. Id.
{¶65} Holbrook next considered whether there was a proper purpose
in introducing the fact of the guilty plea and whether it was improperly
emphasized. Once during closing argument, the State implied that the
codefendant had been found guilty of attempted murder. It has long been
held that “no person shall be bound by a judgment but him who has had an
Lawrence App. No. 15CA2 36
opportunity to be heard in the cause concluded by the judgment.” Holbrook
supra, at 37, quoting Kazer at 282. The court found that it was improper for
the prosecution to reference the specific disposition of the codefendant's case
in this matter. However, the information was not improperly emphasized
and Holbrook was eventually acquitted of conspiracy to commit murder and
conspiracy to commit attempted murder. The Holbrook court concluded that
after consideration of all of the factors set forth in the Casto test, the
prosecutor's statement was improper. However, the court did not believe the
prosecutor's actions prejudicially affected appellant's substantial rights.
{¶66} In State v. Clement, 8th Dist. Cuyahoga No. 94869, 2012-Ohio
582, the defendant was convicted of multiple charges including aggravated
murder, murder, aggravated robbery, and kidnapping in conjunction with a
drug deal involving multiple parties which had gone awry. The Eighth
District Appellate Court considered Clement’s argument on appeal that the
introduction of his two codefendants’ convictions was error. Clement
asserted that the trial court should have instructed the jury that his
codefendants' pleas of guilty or convictions could not be considered as
substantive evidence of Clement's guilt. Citing Kartsone and Clark, supra,
the appellate court observed:
“ ‘[T]he admission of such evidence without a limiting
instruction is not reversible error if defense counsel does not
Lawrence App. No. 15CA2 37
request an instruction and if the evidence was introduced for a
proper purpose.’ Proper purposes include impeaching the
witness or showing that the state has nothing to hide in its plea
agreements.” Id. at ¶ 42; Clement, supra, at ¶ 9.
{¶67} The appellate court concluded that Clement did not establish
the prerequisites for giving a limiting instruction. The court further found
that a review of the transcripts showed that the guilty plea was introduced
for proper purposes and that the prosecutor did not emphasize the guilty plea
or the codefendant’s conviction. Clement's argument was not well taken.
{¶68} As set forth above, we review for plain error. Appellant did not
request a limiting instruction. At the close of trial, the court instructed the
jury as follows:
“You have heard the testimony from Scott Lewis another
person who pled guilty to this robbery in which the same crime
is charged as in this case and is said to be an accomplish. (Sic.)
An accomplis is one who purposely, knowingly, assists or joins
another in the commission of a crime. Whether Scott Lewis
was an accomplis and the weight to give his testimony are
matters for you to determine. Testimony of a person who you
find to be an accomplis should be viewed with grave
suspension (Sic.) and weighed with great caution.”
{¶69} While this is a standard Ohio jury instruction, and it does point
out the proper purpose for consideration of the evidence is for credibility
purposes, this does not follow the model jury instruction highlighted by the
Eighth Appellate District in Kartsone, which specified that the jury was not
Lawrence App. No. 15CA2 38
to consider a codefendant’s guilty plea as evidence of Appellant’s guilt. As
in Kartsone, we look to the remaining factors to determine any error.
{¶70} The next question is whether or not there was a proper purpose
in introducing the evidence. The instances at trial wherein the State
informed the jury regarding the codefendants’ pleas began with the State’s
opening remarks:
“* * * It’s at that time Jason sees…wow. This man carries a
substantial amount of money. Maybe I’ll take it. You see
Jason and Scott Lewis who is a codefendant in this case who
has already pled guilty to the offense of robbery are best
friends. They’ve been best friends since they were young and
children.”
{¶71} At the end of opening, the prosecutor also stated:
“You’ll hear evidence from Scott Lewis who’s pled guilty in
the case, who is Jason Adams’ best friend and he’s going to tell
you how this robbery was planned and how it took place.
* * * There will be no doubt that Jason Adams is guilty of
aiding and abetting Scott Lewis and Ed Hampton.”
{¶72} Defense chose to defer opening statement. The next time a
codefendant’s plea is referenced occurred when Scott Lewis testified:
“Q: You have been indicted in this case with an indictment from
Lawrence County grand jury, for robbery is that correct?
A: Yes sir.
Q: You are represented by an attorney?
A: Yes sir.
Lawrence App. No. 15CA2 39
Q: And your attorney I believe is in the courtroom, Mr. Wolfson.
A: Yes Sir.
Q: You have pled guilty to robbery is that correct?
A: Yes sir.
Q. And that’s in connection with the January 14, 2014 robbery of
Sam Jones?
A. Yes sir.
***
Q: You’ve admitted your involvement in that, correct?
A: Yes sir.
***
Q: Um, in exchange for your testimony the State is going to
recommend a sentence for you, when the Judge sentences you at that
later sentencing date and that is a sentence of five years in prison* * *.
A: Yes sir.
Q: That’s your understanding?
A: Yes.
Q. The deal that you and your attorney reached with the State of
Ohio in your plea negotiations?
A: Yes sir.
Q. Do you know Jason Adams?
Q. Yes sir.
Lawrence App. No. 15CA2 40
Q. Tell the jury how you know Jason.
A. We grew up together * * *. Just been life-long friends.”
{¶73} The next reference to the codefendants’ pleas occurred during
the State’s closing:
“One of the things that the Judge is going to tell you is that you
have to find he aided and abetted Scott Lewis, and Ed
Hampton, in committing this aggravated robbery. As the proof
in this case was both Ed Hampton and Scott Lewis, had been
convicted of the robbery, um, and each pled guilty to the
offense.”
{¶74} Finally, on rebuttal, the State argued:
“The Judge will give you the legal instructions in a minute. He
talks about Scott Lewis’ testimony. Let’s compare Scott
Lewis’ testimony with Jason Adams’ testimony. Who’s more
believable. In your test of credibility who do you believe. He
says well Scott Lewis he’s got no reason to lie. What is it?
What is it? He’s pled guilty to this offense. Going to spend the
next five years in prison? He has to testify against his best
friend since they were kids. What’s his reason to lie? Why
would he lie, why would he do that?”
{¶75} It would appear that the purpose for introducing the fact of the
codefendants’ guilty pleas, especially that of Scott Lewis, was because the
State reasonably anticipated that defense counsel would attack Lewis’s
credibility, which was done. During cross-examination, defense counsel
elicited repetitive testimony about Lewis’s plea bargain with the State of
Ohio and his guilty plea to aggravated burglary. He also attempted to
damage Lewis’s credibility with the jury by inquiring about Lewis’s past,
Lawrence App. No. 15CA2 41
including a failed business, financial trouble, alleged drug dealing, a
discharge from employment, and accusing Lewis of fabricating a confession.
In closing, defense counsel argued:
“The testimony of a codefendant, Scott Lewis, you will receive
in instructions is to be viewed with gray suspicion. Remember
that when you go back and you weigh what he had to say. And
think about his motives for what he said. * * * And again he is
a convicted criminal. * * * Think back to Scott Lewis’
testimony and think about how he was all over the place when
he testified. It wasn’t consistent and that’s one of the things
you look at and see if you are being told the truth. The truth
doesn’t change.”
{¶76} Defense counsel further argued:
“You have one man and that one man would be Scott Lewis,
and he’s the only evidence that could implicate Jason Adams in
this. And again, he is a convicted criminal.”
{¶77} Based upon our review of the transcript, we find it appears the
State had a proper purpose in introducing the fact of Lewis’s guilty plea and
the details of his plea agreement. Furthermore, we find the plea was not
improperly emphasized. The State introduced the plea information in
opening and in Lewis’s direct examination. Although it was mentioned
again in closing and rebuttal, it was mentioned enough by opposing counsel
as well that there would have been little shock value when the State again
mentioned it in closing and rebuttal. Furthermore, the transcript does not
Lawrence App. No. 15CA2 42
reveal any argument by the State that the evidence of Lewis’s plea was
argued to be additional evidence of Appellant’s guilt.
{¶78} We, however, note there is no evidence in the transcript to
suggest that defense counsel invited this introduction of evidence. Defense
counsel deferred opening statement, so the State made a strategic decision to
introduce the evidence for fear the defense would highlight the information
as it indeed did. We conclude there was no error, let alone plain error, in
allowing the information of the codefendants’ pleas to be transmitted to the
jury.
{¶79} Had there been error, we would not find it to have affected the
outcome of the case as there was additional overwhelming evidence of
Appellant’s guilt. The jury was presented evidence that there were
numerous phone calls which occurred between Appellant and Scott Lewis
on the days before, during, and after the robbery. On the date of the robbery
alone, there were 40 calls between the friends. The evidence of the
frequency of calls was provided to the jury. Scott Lewis drove from West
Virginia to meet with Appellant at Giovanni’s in Ironton on the date of the
incident. After their lunch meeting, an additional 24 calls took place
between the two friends up until the time of the incident. And, there were
numerous calls between the two after the robbery until the next day. While
Lawrence App. No. 15CA2 43
the subject of the conversations is not known, but for the testimony of Scott
Lewis, the fact of the frequent phone calls is circumstantial evidence of
planning and preparation for the crime.
{¶80} The jury was provided surveillance tape of the friends leaving
their meeting at Giovanni’s, as well as surveillance tape of Appellant at the
Dollar General store in Ironton. Appellant, Lewis, and Hampton went into
Dollar General and purchased toy guns. Appellant is clearly seen doing the
purchasing, which he explained as being for Hampton’s children. Lewis
testified the toy guns were purchased in order to use to frighten Jones.
{¶81} Appellant also admitted he met with Ed Hampton at Burger
King in Ashland, Kentucky the day after the robbery. While he explained
that Lewis invited him there and did not show up, Lewis testified the
meeting was planned. This was another conflict in the evidence, again
involving Appellant’s credibility, which the jury had to resolve.
{¶82} Appellant also gave statements to the officers who testified. In
his first statement, he failed to mention that he had made and received
multiple phone calls to Scott Lewis, who was then known to be a primary
suspect in the robbery. Appellant failed to mention he had been to Dollar
General with Lewis and another person. He failed to mention he even knew
Scott Lewis or Ed Hampton.
Lawrence App. No. 15CA2 44
{¶83} Convincing evidence is the fact that Appellant was the only link
between Scott Lewis and Sam Jones. Both Lewis and Jones testified they
did not know each other. Lewis testified he had never met Jones but
Appellant described him and pointed him out, along with the vehicle Jones
drove. Appellant testified that Lewis had gone with him to meet Jones on
two occasions.
{¶84} And, Jones testified Appellant kept changing the meeting place
on the date of the incident. Appellant indicated to Jones he was in a hurry
that evening, yet afterwards he asked Jones to get a drink. The jury did not
find Appellant to be a credible witness or to have provided credible
explanations for conflicts in the evidence.
{¶85} For the foregoing reasons, we find plain error did not occur due
to the fact the jury was informed regarding the codefendants’ guilty pleas.
As such, we overrule the assignment of error and affirm the judgment of the
trial court.
“IV. THE TRIAL COURT ERRED IN FAILING TO
PROPERLY ADVISE APPELLANT OF POST-RELEASE
CONTROL RENDERING APPELLANT’S CONVICTION
PARTIALLY VOID.”
A. Standard of Review
{¶86} We have previously set forth the standard of review for felony
sentences above.
Lawrence App. No. 15CA2 45
B. Legal Analysis
{¶87} When a court determines that a prison term is necessary at
sentencing, R.C. 2929.19(B)(3)(c) requires it to notify the offender of a
mandatory term of post-release control for certain felony convictions,
including felonies of the second degree. Taylor, supra, at ¶ 41. To comply
with this requirement, the Supreme Court of Ohio held that trial courts must
actually notify offenders of post-release control sanctions both at the
sentencing hearing and in the sentencing entry. Id. See State v. Jordan, 104
Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at paragraph one of the
syllabus (superseded by statute on separate grounds as stated in State v.
Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.) When a
court fails to properly impose post-release control for a particular offense,
the offending portion of the sentence is void, must be set aside, and is
subject to review and correction. State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, at ¶ 27-29; State v. Triplett, 4th Dist. Lawrence
No. 10CA35, 2011-Ohio-4628, ¶ 4. Appellant points out the transcript of
the sentencing hearing demonstrates Appellant was not advised of post-
release control in any way at his sentencing and only in the final judgment
entry, which was insufficient. Our review of the record confirms this. The
transcript from the sentencing hearing shows that the trial court did not
Lawrence App. No. 15CA2 46
inform Appellant that he would be subject to post-release control, nor did it
inform him of the sanctions for violation of post-release control. As a result,
that portion of the sentence is vacated and the matter is remanded for a
resentencing hearing in accordance with R.C. 2929.191. We sustain
Appellant’s fourth assignment of error.
“V. THE TRIAL COURT ERRED BY NOT GIVING
APPELLANT ALL REQUIRED JAIL TIME CREDIT.”5
“VI. APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL TO A DEGREE THAT
APPELLANT DID NOT RECEIVE A FAIR TRIAL.”
A. Standard of Review
{¶88} The Sixth Amendment to the United States Constitution and
Article I, Section 10 of the Ohio Constitution provide that defendants in all
criminal proceedings shall have the assistance of counsel for their defense.
The United States Supreme Court has generally interpreted this provision to
mean a criminal defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052;
McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, (1970); State v.
Creech, 188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶ 39 (4th
Dist.); State v. Pickett, supra, at ¶ 36.
5
At oral argument, the parties agreed that this assignment of error had been resolved. As such, we do not
address the issue of jail time credit in this opinion.
Lawrence App. No. 15CA2 47
{¶89} 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 the
defendant of a fair trial. Pickett, supra, at ¶ 37; Strickland, 466 U.S. at 687;
State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85.
“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 errors, 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); State v. Wesson, 137 Ohio
St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81. “Failure to establish
either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.
06CA3116, 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, 721
N.E.2d 52, (2000) (stating that a defendant's failure to satisfy one of the
elements “negates a court's need to consider the other”).
{¶90} 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
Lawrence App. No. 15CA2 48
professional assistance.” Pickett, supra, at ¶ 38, quoting Strickland, 466 U.S.
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, 156, 524
N.E.2d 476 (1988).
{¶91} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counsel's errors, the result of the
trial would have been different. Pickett, supra, ¶ 39; State v. Short, 129 Ohio
St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. White, 82 Ohio
St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts
may not simply assume the existence of prejudice, but must require the
defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike
Lawrence App. No. 15CA2 49
No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No.
01CA2592 (Apr. 2, 2002). As we have repeatedly recognized, speculation is
insufficient to demonstrate the prejudice component of an ineffective
assistance of counsel claim. State v. Jenkins, 4th Dist. Ross No. 13CA3413,
2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 13CA4,
2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-
Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-
Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-
2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that is purely
speculative cannot serve as the basis for an ineffectiveness claim).
B. Legal Analysis
{¶92} Appellant argues his counsel was ineffective for failing to
object to the numerous occasions throughout the trial when the jury was
informed of the guilty pleas of both Scott Lewis and Ed Hampton.
Appellant contends that the guilt of Lewis and Hampton was critical in
establishing that Appellant, who maintained he was also a victim of the
robbery, was actually involved in perpetrating the offense. As a result of the
error, Appellant argues he was deeply prejudiced. In response, the State
counters that the decision not to object to the mention of codefendant’s
guilty pleas was reasonable trial strategy and cannot be held to fall below an
Lawrence App. No. 15CA2 50
objective standard of reasonableness. The State further points out that
Appellant fails to demonstrate prejudice, i.e., that the outcome of the trial
would have been different had his counsel objected.
{¶93} First, we observe that “ ‘[t]he failure to object to error, alone, is
not enough to sustain a claim of ineffective assistance of counsel.’ ” Pickett,
supra, at ¶ 41, quoting State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d
136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d
831 (1988). A defendant must also show that he was materially prejudiced
by the failure to object. State v. Holloway, 38 Ohio St.3d at 244. State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 233.
Additionally, tactical decisions, such as whether and when to object,
ordinarily do not give rise to a claim for ineffective assistance. Pickett,
supra, ¶ 42 at State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858
N.E.2d 1144, ¶ 139-140. As the court explained in Johnson at ¶ 139-140:
“[F]ailure to object to error, alone, is not enough to sustain a
claim of ineffective assistance of counsel. To prevail on such a
claim, a defendant must first show that there was a substantial
violation of any of defense counsel's essential duties to his
client and, second, that he was materially prejudiced by
counsel's ineffectiveness. State v. Holloway (1988), 38 Ohio
St.3d 239, 244, 527 N.E.2d 831.
***
[E]xperienced trial counsel learn that objections to each
potentially objectionable event could actually act to their party's
Lawrence App. No. 15CA2 51
detriment. * * * In light of this, any single failure to object
usually cannot be said to have been error unless the evidence
sought is so prejudicial * * * that failure to object essentially
defaults the case to the state. Otherwise, defense counsel must
so consistently fail to use objections, despite numerous and
clear reasons for doing so, that counsel's failure cannot
reasonably have been said to have been part of a trial strategy or
tactical choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d
754, 774. Accord State v. Campbell, 69 Ohio St.3d 38, 52-53,
1994-Ohio-492, 630 N.E.2d 339.”
{¶94} In Pickett, the defendant was convicted of aggravated burglary
and complicity to felonious assault. On appeal, Pickett argued his trial
counsel performed ineffectively by failing to object to inadmissible hearsay.
We held that trial counsel's decision not to object fell within the broad realm
of trial strategy and did not constitute deficient performance. Moreover,
even if trial counsel performed deficiently by failing to object to alleged
hearsay testimony, appellant could not demonstrate that the failure to object
affected the outcome of the trial. We observed that even if the statements
had been excluded, the evidence still amply established that appellant
committed aggravated burglary and that he knowingly aided or abetted the
commission of the felonious assault. We pointed out Pickett’s speculation
that some of the hearsay statements bolstered the State’s theory of the case
was not sufficient to demonstrate ineffective assistance of counsel, and that
had trial counsel objected to the statements and had the court excluded them,
Lawrence App. No. 15CA2 52
we could not find a reasonable probability that the outcome of the
proceedings would have been different.
{¶95} Appellant argues trial counsel failed to object “on numerous
occasions throughout the trial” when the jury was informed of the guilty
pleas of his codefendants Lewis and Hampton. Pursuant to App.R. 16(A) it
is Appellant’s duty to cite to specific portions of the transcript where alleged
error occurred. Since he has not done so, we will assume Appellant is
referring to the instances where the codefendants’ pleas were mentioned, as
pointed out in assignment of three above, which was: (1) twice in opening;
(2) in direct; (3) in closing; and (4) in rebuttal.
{¶96} We find no plain error occurred by the admission of the
information that Appellant’s codefendants had entered guilty pleas in
conjunction with the robbery of Sam Jones and no error has occurred by
defense counsel’s failure to object to the admission of this evidence.
Counsel’s failure to object fell within the broad realm of reasonable trial
strategy. Furthermore, as set forth at length above, overwhelming
circumstantial evidence of Appellant’s guilt is in the record. We cannot find
a reasonable probability that the proceedings would have been different. For
the foregoing reasons, we find Appellant’s counsel did not render ineffective
assistance. As such we overrule the final assignment of error and affirm the
Lawrence App. No. 15CA2 53
judgment of the trial court. Accordingly, we affirm the trial court in all
regards except as it pertains to the fourth assignment of error, and remand
for resentencing consistent with this opinion.
JUDGMENT AFFIRMED IN
PART, REVERSED IN PART,
AND CAUSE REMANDED
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION.
Lawrence App. No. 15CA2 54
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and
Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Lawrence 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.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
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.