State v. Lewis , 2021 Ohio 1575 ( 2021 )

[Cite as State v. Lewis, 2021-Ohio-1575.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29696
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TYREE LEWIS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 03 1038
DECISION AND JOURNAL ENTRY
Dated: May 5, 2021
TEODOSIO, Judge.
{¶1} Appellant, Tyree Lewis, appeals from his conviction for unlawful sexual conduct
with a minor in the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} The victim’s mother (“Y.F.”) was in an on-and-off relationship with Mr. Lewis
through the years. The victim (“K.F.”) is Y.F.’s daughter, who by all accounts was a troubled
teenager residing at different homes during different stretches of time, including Y.F.’s home, her
grandmother’s home, and then her father’s home in Arizona. K.F. is 22 years younger than Mr.
Lewis and would sometimes babysit for him while he was at work. According to Y.F., she
suspected Mr. Lewis was talking to other women, so she went through his cell phone. She
discovered various messages to other women, but also found some inappropriate and flirtatious
messages between K.F. and Mr. Lewis. Y.F. then used the phone to send more messages to K.F.,
all while pretending to be Mr. Lewis. She soon learned that K.F. had performed fellatio on Mr.
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Lewis once when she was 15 years old. According to both K.F.’s grandmother (“E.M.”) and Y.F.,
when confronted on the following day Mr. Lewis admitted to both women that K.F. had performed
fellatio on him. Y.F. eventually called the police to her home days later, but since K.F. was now
living in Arizona and was not in harm’s way, they did not arrest Mr. Lewis on that day. While a
police investigation was pending, Y.F. learned more details from K.F., including that she had given
Mr. Lewis “hand jobs” on two separate occasions prior to the fellatio incident.
{¶3} Y.F. then met up with Mr. Lewis in his parked vehicle in the Stow Walmart parking
lot and hid a cell phone in her wig to record their conversation. In the audio recording, which was
later played for the jury and admitted into evidence at trial, Y.F. questioned Mr. Lewis about the
incident where K.F. was “sucking [his] d**k.” Mr. Lewis was hesitant to say much at first and
expressed concerns about Y.F. possibly wearing a wire to set him up. She convinced him
otherwise though, and he eventually admitted to the fellatio incident and to one of the hand job
incidents. He explained: “I never ever asked her to suck my d**k. To me, that s**t was nasty and
gross. I’m not saying the, the hand job didn’t happen. I’m not saying that that’s not gross, but I
never ever wanted, wanted that.” He claimed K.F. joined him in his bed one night after he had
been out drinking, straddled him, and said, “Tyree, do you want me to put it in my mouth?” He
continued: “Before I had a chance to say no, the next thing I know she was doing it. I never asked
her to do it.” When Y.F. asked why he did not just push a 15-year-old off of him, he explained, “I
was a little drunk * * * [I]t was bad judgment. I could have.” Although he continued to blame
K.F. for the incident, Mr. Lewis nonetheless admitted in the recording, “I’m not saying I was right.
I’m wrong. I know I’m wrong. I know I’m wrong. I know I’m wrong.” Y.F. later provided the
audio recording to the police.
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{¶4} Following their investigation, the police arrested Mr. Lewis for the fellatio incident
and charged him with unlawful sexual conduct with a minor, under R.C. 2907.04(A), which
prohibits anyone 18 years or older from engaging in sexual conduct1 with a non-spouse minor
between the ages of 13 and 15 years old when the offender either knows the minor’s age or is
reckless in that regard. Mr. Lewis was convicted of the offense after a jury trial, and the jury found
beyond a reasonable doubt that he was at least 10 years older than K.F., which elevated the offense
to a felony of the third degree. See R.C. 2907.04(B)(3). The trial court sentenced Mr. Lewis to 4
years in prison and classified him as a Tier II sex offender.
{¶5} Mr. Lewis now appeals from his conviction and raises three assignments of error
for this Court’s review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR WHEN IT PERMITTED THE INTRODUCTION BY
THE STATE OF OTHER CRIMES, WRONGS, OR ACTS TO SHOW PROOF
OF APPELLANT’S CHARACTER IN VIOLATION OF [EVID.R.] 404(B).
{¶6} In his first assignment of error, Mr. Lewis argues that the trial court erred in
admitting other-acts evidence to show proof of his character, in violation of Evid.R. 404(B). We
disagree.
{¶7} “A hallmark of the American criminal justice system is the principle that proof that
the accused committed a crime other than the one for which he is on trial is not admissible when
its sole purpose is to show the accused’s propensity or inclination to commit crime.” State v.
Curry, 43 Ohio St.2d 66, 68 (1975). The admissibility of other-acts evidence is carefully limited
1
“Sexual conduct” includes fellatio. R.C. 2907.01(A).
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because of the substantial danger that the jury will convict the defendant solely because it assumes
either he has a propensity to commit criminal acts or he deserves punishment regardless of whether
he committed the crime charged in the indictment. State v. Schaim, 65 Ohio St.3d 51, 59 (1992).
This danger is particularly high when the other acts are very similar to the charged offense or of
an inflammatory nature. Id. Evid.R. 404(B) thus provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Compare R.C. 2945.59.
{¶8} The Supreme Court of Ohio previously set forth a three-part analysis for
determining the admissibility of other-acts evidence:
to be admissible, (1) the evidence must be relevant, Evid.R. 401, (2) the evidence
cannot be presented to prove a person’s character to show conduct in conformity
therewith but must instead be presented for a legitimate other purpose, Evid.R.
404(B), and (3) the probative value of the evidence cannot be substantially
outweighed by the danger of unfair prejudice, Evid.R. 403.
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20. More recently though, the high
court issued two decisions in State v. Hartman and State v. Smith, “to help clear up some of the
confusion that exists regarding the use of other-acts evidence” and to “provide trial courts with a
road map for analyzing the admission of other-acts evidence * * *.” State v. Hartman, 161 Ohio
St.3d 214, 2020-Ohio-4440, ¶ 19. See also State v. Smith, ___ Ohio St.3d ___, 2020-Ohio-4441,
¶ 37.
{¶9} Courts are precluded from admitting improper character evidence under Evid.R.
404(B), but have discretion to allow other-acts evidence that is admissible for a permissible
purpose. State v. Graham, ___ Ohio St.3d ___, 2020-Ohio-6700, ¶ 72, citing Hartman at ¶ 22,
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citing Williams at ¶ 17. Thus, pursuant to Hartman and Smith, we analyze the admission of other-
acts evidence under a mixed standard of review. First, the determination of whether the other-acts
evidence was offered for an impermissible purpose under Evid.R. 404(B) is a question of law,
which we review de novo. Hartman at ¶ 22. “A de novo review requires an independent review
of the trial court’s decision without any deference to the trial court’s determination.” State v.
Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4. Next, if the other-acts evidence was
offered for a permissible purpose, the determination of whether to then admit the evidence—after
weighing its probative value against its prejudicial effect—is reviewed for an abuse of discretion.
Hartman at ¶ 30. “The term ‘abuse of discretion’ connotes more than an error of law or judgment;
it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a
reviewing court is precluded from simply substituting its own judgment for that of the trial court.
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶10} Relevant evidence is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401. “Evidence which is not relevant is not
admissible.” Evid.R. 402. In other-acts cases, the threshold question for determining admissibility
is whether the evidence is relevant—not to the ultimate determination of guilt, but rather to the
particular purpose for which it is offered. Hartman at ¶ 24-26. The evidence must be probative
of a purpose other than the person’s character or propensity to behave in a certain way. Id. at ¶
26. It is not enough to say that the evidence is relevant to a non-propensity purpose, however, as
that purpose must also go to a “material” issue that is actually in dispute. Id. at ¶ 27. In other
words, “courts should begin by evaluating whether the evidence is relevant to a non-character-
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based issue that is material to the case.” Smith at ¶ 38. Moreover, to guard against juries being
presented with every unsubstantiated accusation that, if true, would be “relevant,” there must also
be a threshold showing that the alleged similar act was committed by the defendant. Hartman at
¶ 28.
{¶11} The analysis does not end there though, as Evid.R. 403(A) requires the exclusion
of relevant evidence “if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Accordingly, once the proponent
has established a permissible non-propensity purpose for the admission of other-acts evidence,
“the trial court must determine whether the proffered evidence—though admissible under Evid.R.
404(B)—is nevertheless more prejudicial than probative.” Hartman at ¶ 29. In doing so, the court
must first consider the extent to which the other-acts evidence is directed to an issue that is actually
in dispute. Id. at ¶ 31. Generally, both the probative value and prejudicial effect will depend on
the degree to which the fact is actually contested. Id. If the fact that the proponent seeks to prove
is not genuinely disputed or material to the case, then it has little probative value and the risk of
prejudice is high. Id. “Courts should also consider whether the prosecution is able to present
alternative evidence to prove the same fact through less prejudicial means and whether the other-
acts evidence is probative of an essential element of the crime or an intermediate fact in the case.”
Id. at ¶ 32. When other-acts evidence is only slightly probative of a non-propensity theory but has
a high likelihood of unfairly prejudicing the defendant or confusing or misleading the jury, the
evidence must be excluded. Id. at ¶ 33. Finally, when a court admits other-acts evidence, it should
minimize the danger of unfair prejudice by explaining both the specific purpose for which the
evidence may be considered and the rationale for its admission on the record. Id. at ¶ 34. Courts
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can help reduce the risk of confusion and unfair prejudice by issuing an appropriate jury instruction
geared toward the specific purpose for which the evidence has been admitted. Id.
{¶12} In the case sub judice, defense counsel made an oral motion in limine during a
pretrial status conference and argued to exclude any testimony that K.F. gave Mr. Lewis hand jobs
on two occasions prior to the fellatio incident. The prosecutor agreed that Mr. Lewis was not
charged with receiving hand jobs from K.F., but argued that “they go to explain the progression
and how it went from a stepfather-stepdaughter relationship to his penis was in her mouth.” The
prosecutor claimed the victim was groomed by Mr. Lewis and it was “absolutely necessary and
vital for the jury to hear each of those small steps that led to that giant leap.” The trial court stated
it was “inclined to allow it[,]” but took the matter under advisement. Defense counsel raised the
issue again at the outset of trial, and the prosecutor argued that the hand jobs would be offered to
show a “continuing course of conduct” and “the process [Mr. Lewis] used to groom [K.F.] * * *.”
He explained:
It started with all the classic grooming stuff: The special favors, treatment, allowing
to bend the rules, befriending, going kind of past being a parent, more of a friend,
and then physical touching. Ultimately, the * * * two hand jobs, and then ultimately
a blow job * * * It’s quite a jump for the jurors to hear: Well, this stepparent, this
man of the house, all of a sudden gets a blow job from this girl. We need to fill
them in on the steps.
The trial court ruled to admit the evidence over the objection, noting it was the court’s
understanding that the evidence was being offered “on the issue of motive, * * * course of conduct,
absence of mistake, but primarily on motive to show the increased contact and/or grooming” of
the victim.
{¶13} The other-acts evidence was first introduced when Y.F. testified that she learned
K.F. had given Mr. Lewis two hand jobs in the past. The trial court immediately interjected and
explained to the jury that the “testimony regarding events leading up to the oral sex” was not being
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admitted “to show conformity thereof or that he is guilty of this offense[,] but only to demonstrate
motive on [his part.]” Defense counsel tried to then note an objection to the other-acts testimony
for the record, but the trial court said it was too late and should have been done before the question
was asked. The court nonetheless ordered the jury to disregard the evidence and asked the
prosecutor to proceed examining the witness. As Y.F.’s testimony resumed, defense counsel twice
tried to preemptively object to the other-acts evidence, but her objections were overruled. Y.F.
eventually testified again that she learned her daughter had given hand jobs to Mr. Lewis on two
prior occasions, but no further objections were made.
{¶14} K.F. also testified about the two hand job incidents. She testified that she was in
her sister’s bedroom when Mr. Lewis showed up and eventually asked her for a “favor” as he was
leaving. He purportedly struggled for several minutes to find the words to ask her something, but
eventually took her hand and placed it on the outside of his pants, over his penis. He explained to
her, “I was thinking I could, like, pay you to give me a hand job[,]” but K.F. declined the illicit
offer. Mr. Lewis then warned her that he would tell her mother about her girlfriend often spending
the night in the house, which was against her mother’s rules, so K.F. testified that she “complied.”
Mr. Lewis lay down on the bed, pulled out his penis, and led K.F.’s hand to it. K.F. proceeded to
give him a hand job, which she described as “[p]utting [her] hand on his penis and rubbing it until
he ejaculate[d].” When K.F. was cleaning up afterward, Mr. Lewis told her he would get her the
money later. A few days later, Mr. Lewis apologized to K.F. and said it would not happen again.
According to K.F., the second incident occurred at a time when the parents of her girlfriend were
getting divorced. Mr. Lewis suggested that K.F. buy her girlfriend some flowers. When K.F.
explained that she did not have any money, Mr. Lewis proposed, “Maybe we can set up a situation
like last time.” According to K.F., Mr. Lewis then grabbed her hand and led it to his penis. She
9
testified that she complied again because she was afraid of getting in trouble with her mother. Mr.
Lewis lay down on his bed, pulled out his penis, and K.F. gave him another hand job until he
ejaculated. Finally, she testified that, during what began as a third hand job incident, Mr. Lewis
told her, “You should put it in your mouth[,]” which she did.
{¶15} The trial court determined that the other-acts evidence was admissible because it
demonstrated Mr. Lewis’ motive, course of conduct, and absence of mistake, but only informed
the jury that it was being introduced to show motive. “Motive evidence establishes that the accused
had a specific reason to commit a crime.” Hartman at ¶ 48. Evidence of the two hand jobs did
not reveal a specific reason for Mr. Lewis to later engage in fellatio with K.F., however, and thus
did not provide evidence of any motive to commit unlawful sexual conduct with a minor beyond
that which can be inferred from the commission of the crime itself. See Hartman at ¶ 49, citing
State v. Curry, 43 Ohio St.2d 66, 71 (1975) (“A person commits or attempts to commit statutory
rape for the obvious motive of sexual gratification. Since motive cannot be deemed to have been
a material issue at appellee’s trial, ‘other acts’ testimony was not admissible to prove this matter.”).
“[I]n most cases of this type, there is no motive beyond that implicit in the commission of the
offense itself.” Hartman at ¶ 50 (concerning the offense of rape). See also State v. Sabo, 5th Dist.
Delaware No. 18 CAA 10 0080, 2019-Ohio-3072, ¶ 27-28 (stating the motive and intent of sexual
gratification was not a material issue as it was apparent from the charges of gross sexual
imposition). Mr. Lewis’ motive in receiving fellatio from K.F. was undoubtedly sexual
gratification, which was not a material issue in dispute. We therefore disagree with the trial court’s
determination that the other-acts evidence was admissible for the purpose of establishing motive.
{¶16} Nevertheless, an appellate court shall affirm a trial court’s judgment that is legally
correct on other grounds, that is, one that achieves the right result for the wrong reason, because
10
such an error is not prejudicial. Cook Family Invests. v. Billings, 9th Dist. Lorain Nos.
05CA008689 and 05CA008691, 2006-Ohio-764, ¶ 19. Given our de novo standard of review, we
determine that the other-acts evidence, while not admissible to show motive, was nonetheless
admissible to show absence of mistake or accident. Compare Smith at ¶ 43 (concluding that while
the trial court was incorrect in its conclusion that the evidence was admissible to show a common
scheme or plan, the evidence was admissible to show an absence of mistake.). “Other-acts
evidence is admissible to negate a defendant’s claim of mistake or accident with respect to the
commission of the alleged crime; such evidence tends ‘[t]o show, by similar acts or incidents, that
the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty
knowledge.’” Hartman at ¶ 52, quoting McCormick, Evidence, Section 190, at 804 (4th Ed.1994).
In the criminal context, there are generally two ways in which the accused may raise a claim of
accident; the first involves whether a criminal act occurred at all, and the second implicates the
intent of the accused. Id. at ¶ 52-53.
{¶17} Here, the defense theory at trial was that no crime occurred. Mr. Lewis’ defense
was instead that K.F. was both a liar and a manipulator who surreptitiously performed fellatio on
him while he was asleep. Mr. Lewis testified in his own defense that K.F. joined him in his bed
one night after he arrived home from a night out drinking. According to Mr. Lewis, he was lying
on his side and fell asleep while talking to K.F. She then sat on top of him, but he woke up and
told her to go to her room. Mr. Lewis then fell back asleep, and the next thing he remembered was
feeling K.F. performing fellatio on him for a “split second.” He rolled away from her and fell back
asleep, while K.F. presumably left his room.
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{¶18} Mr. Lewis’ defense was not that K.F. merely consented2 to the fellatio, but rather
that she performed it on him without his knowledge while he was asleep, making any role of his
in the act completely involuntary. Thus, the other-acts evidence that Mr. Lewis received two hand
jobs from K.F. in the past was relevant and admissible not to show his propensity to commit sexual
offenses against minors, but to negate his explanation for how his penis wound up in K.F.’s mouth,
which was a material issue in dispute. Compare Hartman at ¶ 56 (discussing a Montana case
where other-acts evidence was permissible not to show a propensity to capture elk but to negate
the explanation for how the elk came to be on the defendant’s farm). As the Supreme Court
explained in Hartman, the permissible inference in this situation is that “‘the oftener a like act has
been done, the less probable it is that it could have been done innocently.’” Id., quoting State v.
Evers, 139 Wis.2d 424, 437 (1987), quoting 2 Weinstein & Berger, Weinstein’s Evidence, Section
404[12], at 404-84 to 404-87 (1985).
{¶19} Next, we cannot say that the trial court abused its discretion in deciding that the
probative value of the other-acts evidence was not substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury. See Evid.R. 403(A). “‘Logically,
all evidence presented by a prosecutor is prejudicial, but not all evidence unfairly prejudices a
defendant.’” (Emphasis added.) State v. Martin, 9th Dist. Lorain No. 15CA010888, 2017-Ohio-
2794, ¶ 23, quoting State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 107. “Unfairly
prejudicial evidence usually appeals to the jury’s emotions, rather than to intellect.” State v.
2
While it appeared initially from the transcript that consent would play a part in Mr. Lewis’
defense, the issue appeared to be abandoned once the trial court cautioned the parties that consent
could not be an issue in this case. A child under 16 years old is simply not legally capable of
consenting to sexual conduct with an adult, so consent plays no role and is not a viable defense in
determining whether a person has violated R.C. 2907.04. State v. Blankenship, 145 Ohio St.3d
221, 2015-Ohio-4624, ¶ 26.
12
Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 112. At the outset of trial, the trial court noted
in overruling defense counsel’s objection that the other-acts evidence was probative. Although
the court did not explicitly state its findings on the record regarding its weighing process and
application of Evid.R. 403(A), it was not required to do so. State v. Froman, 162 Ohio St.3d 435,
2020-Ohio-4523, ¶ 46. Whether Mr. Lewis committed a criminal offense or whether K.F.
performed fellatio on him without his knowledge while he was asleep was a disputed issue of
paramount importance at trial. The State’s witnesses were all subject to cross-examination, and
nothing in the record suggests the prosecution could have presented alternative evidence of the
hand jobs through less prejudicial means to negate Mr. Lewis’ defense in this matter. Moreover,
because the trial court explicitly instructed the jury that the evidence was not being admitted “to
show conformity thereof” or to show that Mr. Lewis was guilty in the fellatio incident, but only
for the limited purpose of demonstrating his motive, the court minimized the risk of any confusion
and unfair prejudice. See Hartman at ¶ 34. Juries are also presumed to follow the trial court’s
instructions. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 103. We therefore cannot
say that the trial court abused its discretion in admitting the other-acts evidence after weighing its
probative value against its prejudicial effect. See Hartman at ¶ 30.
{¶20} Mr. Lewis’ first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
APPELLANT LEWIS WAS DENIED A FAIR TRIAL AND DUE PROCESS OF
LAW BY THE TESTIMONY AT TRIAL PRESENTED BY THE STATE OF
INTERNET COMMUNICATIONS WITHOUT THE ESTABLISHMENT OF A
PROPER FOUNDATION.
{¶21} In his second assignment of error, Mr. Lewis argues that plain error occurred when
the proper foundation was not laid for witness testimony regarding electronic messages. We
disagree.
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{¶22} A trial court’s decision to admit or exclude testimony is typically reviewed for an
abuse of discretion. State v. Green, 9th Dist. Summit No. 29120, 2019-Ohio-4967, ¶ 18. See also
State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus (“The admission or
exclusion of relevant evidence rests within the sound discretion of the trial court.”). A party’s
failure to object to testimony on the basis that it lacked the necessary foundation, however, results
in the forfeiture of all but plain error. State v. Reye, 9th Dist. Lorain No. 15CA010770, 2016-
Ohio-3495, ¶ 11. Mr. Lewis never objected to any testimony on these grounds, so he concedes
that he is limited to arguing plain error on appeal.
{¶23} “Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” Crim.R. 52(B). “To establish plain error, one must
show (1) an error occurred, i.e., a deviation from a legal rule, (2) the error is plain, i.e., an obvious
defect in the proceedings, and (3) the error affected a substantial right, i.e., affected the outcome
of the proceedings.” State v. Grant, 9th Dist. Summit No. 29259, 2019-Ohio-3561, ¶ 5, citing
State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 36. Even if an appellant satisfies this
burden, an appellate court has discretion to disregard the error. State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, ¶ 14. Notice of plain error “is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶24} “Before evidence may be admitted, it must be authenticated or identified
sufficiently ‘to support a finding that the matter in question is what its proponent claims.’” State
v. Hoffmeyer, 9th Dist. Summit No. 27065, 2014-Ohio-3578, ¶ 18, quoting Evid.R. 901(A). The
threshold for admissibility is low, however, and Evid.R. 901(B) provides a nonexhaustive list
illustrating the ways in which the proponent of the admission of evidence can conform with
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Evid.R. 901(A). State v. Yuschak, 9th Dist. Medina No. 15CA0055-M, 2016-Ohio-8507, ¶ 17.
For example, the authentication or identification of evidence may be achieved through the
testimony of a witness with knowledge that “‘a matter is what it is claimed to be.’” Id., quoting
Evid.R. 901(B)(1). See also State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 8,
quoting State v. Howard, 1st Dist. Hamilton No. C-170453, 2018-Ohio-3692, ¶ 15 (“‘All that is
required is sufficient evidence from which the trier of fact might conclude that a document is
authentic.’”). Generally, in most cases involving electronic print media, i.e., texts, instant
messaging, and e-mails, the photographs taken of the print media or the printouts of those
conversations are authenticated, introduced, and received into evidence through the testimony of
the recipient of the messages. State v. Roseberry, 8th Dist. Cuyahoga No. 96166, 2011-Ohio-5921,
¶ 75.
{¶25} Here, Y.F. testified that she discovered inappropriate messages between Mr. Lewis
and K.F. when she went through Mr. Lewis’ phone. She then used the phone to continue
messaging K.F. as if she were Mr. Lewis and soon learned that K.F. had performed fellatio on Mr.
Lewis. The State only sought to introduce one printed page of the voluminous Instagram messages
between Mr. Lewis and K.F. that were extracted from the phone, but the trial court did not admit
it into evidence. No copies of any other electronic messages were introduced and admitted.
{¶26} Mr. Lewis argues that it was plain error for the trial court to permit testimony
regarding the messages because copies of the electronic messages were never introduced and
admitted at trial. But, assuming without deciding that the trial court erred in permitting this
testimony, Mr. Lewis cannot establish plain error because he has not demonstrated that he was
unfairly prejudiced as a result of the testimony. See State v. Knight, 9th Dist. Wayne No.
15AP0019, 2016-Ohio-8505, ¶ 14. See also State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,
15
¶ 22 (addressing the plain-error standard and stating that “[t]he accused is * * * required to
demonstrate a reasonable probability that the error resulted in prejudice * * *.” (Emphasis sic.)).
First, we note that the jury did not have to believe any of the testimony regarding the electronic
messages to find Mr. Lewis guilty of unlawful sexual conduct with a minor. The jury only had to
find beyond a reasonable doubt that (1) Mr. Lewis engaged in fellatio with K.F. and (2) he either
knew K.F. was between 13 and 15 years old or was reckless in that regard. Furthermore, our
review of the record reveals that the State introduced overwhelming evidence supporting the jury’s
guilty verdict in this matter, and Mr. Lewis has not challenged the sufficiency or weight of this
evidence on appeal. The State’s evidence included: (1) K.F.’s testimony that she performed
fellatio on Mr. Lewis; (2) Y.F.’s testimony that Mr. Lewis attended K.F.’s birthday parties and
knew her age; (3) testimony that Mr. Lewis admitted the fellatio incident to both Y.F. and E.M.;
and (4) an audio recording in which Mr. Lewis admitted that K.F. performed fellatio on him and
that he knew it was wrong and could have stopped it but did not. Altogether, this wealth of
evidence was more than enough to convict Mr. Lewis of unlawful sexual conduct with a minor,
even if the testimony concerning electronic messages had been excluded. Mr. Lewis has therefore
failed to demonstrate plain error because he has not demonstrated that the outcome of the trial
would have been different had the testimony been excluded. See Grant at ¶ 5; Morgan at ¶ 36.
{¶27} At the tail end of this assignment of error, Mr. Lewis briefly claims for the first and
only time: “Being able to confront your accuser is a Sixth Amendment right as guaranteed by the
United States Constitution. Lewis was denied that right in this case.” Although Mr. Lewis
mentions the Confrontation Clause here, he develops no argument explaining how his right to
confront witnesses was violated, e.g., he does not argue that the electronic messages were
testimonial in nature or that he was denied the opportunity to cross-examine those who created and
16
sent the messages. See State v. Walters, 9th Dist. Summit No. 28582, 2018-Ohio-1175, ¶ 31, citing
State v. Just, 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 24 (noting that where the victims
testified at trial no Confrontation Clause violation occurred). See also App.R. 16(A)(7). We
decline to construct such an argument on his behalf. See id.; State v. McNair, 9th Dist. Lorain No.
13CA010485, 2015-Ohio-2980, ¶ 39.
{¶28} Mr. Lewis’ second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL WHICH DENIED HIM A FAIR TRIAL IN VIOLATION OF THE
UNITED STATES AND OHIO CONSTITUTIONS.
{¶29} In his third assignment of error, Mr. Lewis argues that his trial counsel was
ineffective for failing to object to (1) testimony regarding electronic messages, (2) still
photographs taken from body cams videos, and (3) other-acts evidence. We disagree.
{¶30} “The Sixth Amendment guarantees a criminal defendant the right to the effective
assistance of counsel.” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 22. “[I]n
Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, ¶ 62. “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Moreover, even debatable trial tactics
will not constitute ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49 (1980).
To prove ineffective assistance of counsel, one must establish that: (1) his counsel’s performance
was deficient, and (2) the deficient performance prejudiced the defense. Strickland at 687.
Counsel’s performance is deficient if it falls below an objective standard of reasonable
representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.
17
Prejudice can be shown by proving “there exists a reasonable probability that, were it not for
counsel’s errors, the result of the trial would have been different.” Id. at paragraph three of the
syllabus. “[T]he Court need not address both Strickland prongs if an appellant fails to prove either
one.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-3108, ¶ 34.
{¶31} Mr. Lewis first argues that trial counsel was ineffective for failing to object to
“numerous instances” of testimony concerning electronic messages. Specifically, he notes Y.F.’s
testimony that she learned through electronic messaging with K.F. about “some type of sexual
interaction, which was oral sex from [K.F.] to [Mr. Lewis].” He also notes different points during
Detective Sutton’s testimony, in which he testified that: (1) he reviewed the extraction of Mr.
Lewis’ phone; (2) Y.F. said she had text messages from Mr. Lewis’ phone; (3) he confirmed “that”
with the information from the phone extraction; (4) he found information on Mr. Lewis’ Instagram
page that confirmed some of K.F.’s statements, including the amount of money ($150.00) that was
to be exchanged between the two; (5) K.F. stated that Mr. Lewis agreed to hold onto the $150.00
for her to avoid suspicion from her mother, with the intent to give it to her when she needed it,
which corroborated part of the investigation.
{¶32} “[T]his Court has consistently held that ‘trial counsel’s failure to make objections
falls within the realm of trial tactics and does not establish ineffective assistance of counsel.’”
State v. Bradford, 9th Dist. Summit No. 22441, 2005-Ohio-5804, ¶ 27, quoting State v. Taylor, 9th
Dist. Lorain No. 01CA007945, 2002-Ohio-6992, ¶ 76. In fact, “‘[a] competent trial attorney might
well eschew objecting * * * in order to minimize jury attention to the damaging material.’” State
v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 90, quoting United States v. Payne, 741 F.2d 887,
891 (7th Cir.1984). As we have already determined, the information within the messages was not
necessary for the State to obtain a conviction in this matter, and overwhelming other evidence was
18
introduced which supported the jury’s finding of guilty beyond a reasonable doubt. See Discussion
of Assignment of Error II, supra. Thus, we cannot say that counsel’s performance was deficient.
Even assuming arguendo that counsel should have objected, Mr. Lewis has not demonstrated any
resulting prejudice in light of the overwhelming evidence introduced against him. See State v.
Jackson, 9th Dist. Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 68, citing State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, ¶ 105 (finding no ineffective assistance of counsel where even
if trial counsel objected and evidence was excluded, other evidence established facts giving rise to
the defendant’s conviction).
{¶33} Next, Mr. Lewis argues that trial counsel was ineffective for not objecting to the
introduction of various still photographs captured from the police officers’ body cam videos
showing Mr. Lewis holding his hands out as if preparing to be handcuffed, and then putting his
hands behind his back, again presumably to be handcuffed. He contends that the photos were both
prejudicial and cumulative because they indicate an admission of guilt and were taken from videos
already viewed by the jury. These photographs indicate at most, however, only that Mr. Lewis
assumed he was being taken into police custody, which is a far cry from an admission of guilt to a
crime. The jury viewed the body cam footage and heard testimony from those present that day,
which provided ample context for the photos and revealed that Mr. Lewis not only did not admit
any guilt, but he barely spoke at all and did not answer any police questions. When one of the
officers was asked during the viewing of the body cam videos in court what the “hands out, hands
behind the back” signified, defense counsel’s immediate objection was sustained. While the
photos were indeed captured from body cam footage already in evidence, the mere fact that the
photos are cumulative of the video footage does not result in prejudicial error, absent a level of
gruesomeness or shock value not at issue here. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-
19
6266, ¶ 232. Any error in the admission of the photos would also amount to harmless error in light
of the overwhelming evidence of Mr. Lewis’ guilt introduced at trial. See, e.g., State v. Ford, 158
Ohio St.3d 139, 2019-Ohio-4539, ¶ 255-256. Once again, we cannot say that counsel’s
performance was deficient, and Mr. Lewis has not demonstrated any resulting prejudice, as
overwhelming other evidence was introduced against him. See Jackson at ¶ 68.
{¶34} Finally, Mr. Lewis argues that trial counsel was deficient in failing to renew her
motion in limine to exclude the other-acts evidence and in not continuing to object to the other-
acts testimony at trial to preserve the argument for appeal. Evid.R. 103(A) provides that “[o]nce
the court rules definitely on the record, either before or at trial, a party need not renew an objection
or offer of proof to preserve a claim of error for appeal.” The trial court definitely ruled on defense
counsel’s objections to the other-acts evidence at the start of trial, so it was not necessary to renew
those objections to preserve Mr. Lewis’ claim of error for appeal. See State v. Piatt, 9th Dist.
Wayne No. 19AP0023, 2020-Ohio-1177, ¶ 49, citing Evid.R. 103(A). We have also already
determined that the trial court did not err in admitting the other-acts evidence of the two hand jobs
at trial. See Discussion of Assignment of Error I, supra. Mr. Lewis therefore cannot demonstrate
that counsel was deficient in failing to object to it. See Piatt at ¶ 49.
{¶35} Mr. Lewis’ third assignment of error is overruled.
III.
{¶36} Mr. Lewis’ first, second, and third assignments of error are all overruled. The
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
20
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
NATHAN A. RAY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.