State v. Wright , 2021 Ohio 2133 ( 2021 )

[Cite as State v. Wright, 2021-Ohio-2133.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28831
:
v. : Trial Court Case No. 2019-CR-2281
:
VINCENT WRIGHT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of June, 2021.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
DAVID E. STENSON, Atty. Reg. No. 0042671, 131 North Ludlow Street, Suite 316,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Defendant-Appellant Vincient Wright (spelled Vincent in the trial court, which
this court retains in the caption, pursuant to App.R. 3(D)) was convicted after a jury trial
in the Montgomery County Court of Common Pleas of four counts of aggravated robbery
with firearm specifications. Wright was acquitted of a fifth aggravated robbery charge.
Wright appeals from his convictions, claiming that (1) his trial counsel rendered ineffective
assistance, (2) his convictions were against the manifest weight of the evidence, (3) the
prosecutor engaged in misconduct during the questioning of a witness, and (4) cumulative
error deprived him of a fair trial. For the following reasons, the trial court’s judgment will
be affirmed.
I. Facts and Procedural History
{¶ 2} Wright was charged with five counts of aggravated robbery with firearm
specifications arising from the armed robberies of Family Dollar and Dollar General stores
in Dayton between April 20, 2019 and July 10, 2019. The State’s evidence at trial
established the following facts.
April 20 Robbery – Family Dollar at 1125 Wayne Avenue
{¶ 3} At approximately 5:20 p.m. on April 20, 2019, Kurt Hegemier and his son,
Kiel, drove to the Family Dollar store at 1125 Wayne Avenue so that Kiel could purchase
diapers for his young child. Kiel went into the store while his father waited in a van.
Within a few minutes, a man walked past Kurt’s van, pulled up his hoodie, reportedly put
on a mask, and walked into the store. Kiel, who was waiting to check out at the counter,
saw the man walk in, pull out a handgun, rack the gun, and tighten the hoodie around his
face. The robber held the gun in his left hand and cinched the hoodie with his right hand.
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Kiel thought the gun might have been fake, but he was not sure. The man told Kiel to
get back, went around the counter, and told the cashier to hurry up and put money in a
bag. After the cashier handed him a plastic bag with cash from the register, the man left
the store and ran into the surrounding neighborhood.
{¶ 4} At 5:24 p.m., Dayton Police Officer Seth Victor and his partner were
dispatched to the Wayne Avenue store. Officer Victor reviewed surveillance video and
determined that the perpetrator had touched very little – just the door, from which it would
be difficult to obtain fingerprints (the robber did not wear gloves). The officer obtained a
description of the robber: male, about 5’7”, wearing a black hoodie and black sweatpants.
A store employee reported in her 911 call that the sweatshirt was Nike brand, and the
surveillance video showed that the sweatshirt was worn inside out. Other individuals
said during a second 911 call that the robber was balding and had tattoos on his neck.
{¶ 5} The Dayton Police Department’s Violent Offender Unit investigates all
robberies in Dayton. In the spring and summer of 2019, the unit had six detectives and
two Bureau of Alcohol, Tobacco and Firearms (ATF) special agents assigned to the office.
According to Detective Nathan Curley, the assigning detective, the unit uses crime pattern
analysis and does independent follow-up investigations of robberies.
{¶ 6} Detective Curley assigned himself to the April 20 robbery of the Family Dollar
store on Wayne Avenue. He went to the scene, spoke with witnesses, and watched the
surveillance video. Curley saw in the video that the suspect ran down the road behind
the Family Dollar store, then down an alley that runs perpendicular to that road. A
witness reported that the man then got into a silver car and drove away. Detective Curley
was unable to find video footage of the silver vehicle.
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May 31 Robbery – Dollar General at 2821 Linden Avenue
{¶ 7} At approximately 9:30 p.m. on May 31, 2019, Kara Wellman was working as
the assistant manager at the Dollar General store at 2821 Linden Avenue. As Wellman
was preparing to go into the safe to make a “cash drop” and change out large bills for
smaller bills, a man entered the store wearing a dark hoodie, dark pants, and dark shoes;
he was not wearing gloves. The hoodie was pulled closed so only his eyes and nose
were visible. The man jumped over the barrier to get behind the counter, holding his
hood closed with his right hand while holding a gun in his left hand. Wellman did not see
the man approach her, but she heard him say, “Yeah, open the safe.” The safe was
behind the counter near the registers. Wellman noticed that the man had a gun pointed
at her.
{¶ 8} Wellman opened the safe and backed away. The robber crouched down by
the safe, pulled out a money tray with his right hand and then took cash with that hand
before transferring it to his left. He then passed the money back to his right hand and
put the money in his right pocket. After the man took money from the safe, Wellman
opened a register. While Wellman opened the register, the robber held his hood closed
with his left hand. He then grabbed money from the register with his right hand,
transferred it to his left hand, and put it in his left pocket. As the robber left the store, he
held his hood closed with his left hand. Wellman called 911.
{¶ 9} Dayton Police Officer Christopher White was dispatched to 2821 Linden
Avenue on a report of an armed robbery in progress at that location. The dispatch
indicated that the male perpetrator was dressed in dark clothing and was last seen
running through the parking lot. Instead of heading directly to that location, the officer
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drove around the area, looking for the perpetrator, but he did not locate any suspects.
Officer White reported that another crew conducted a traffic stop of potential suspects
nearby, but it appeared that vehicle’s occupants had nothing to do with the robbery.
{¶ 10} Officer White then drove to the store to assist other officers in the
investigation. White reviewed security footage, and he noted that the perpetrator had
entered the store and jumped over the barrier separating customers from the employees
at the register. Once over the barrier, the robber brandished a handgun and ordered an
employee to open the safe and cash register. The robber brushed the employee aside,
took money from both, hopped back over the barrier, and left the store. Officer White
estimated that the robber was 5’9” or 5’10” tall.
June 10 Late Afternoon Robbery – Dollar General at 2312 North Main Street
{¶ 11} During the late afternoon on June 10, 2019, Sommer Stroope was the
assistant manager at the Dollar General Store at 2312 North Main Street. Tonia Smith
was working as the cashier. Shortly before 5:00 p.m., a male dressed in a black hooded
sweatshirt with a distinctive white logo, black pants, and black Nike shoes entered the
store. The hood of the sweatshirt was cinched around the man’s face. The man jumped
the counter and told Smith to open the register. After the register was open, he reached
in with his right hand, transferred the cash to his left hand, and then put it in his left pocket.
The robber then jumped back over the counter and left. As he exited the store, his left
hand was in his pocket, and he held his hood closed with his right hand.
{¶ 12} Smith called to Stroope that she had been robbed and that the robber had
a gun. Stroope told Smith to call 911, and she (Stroope) went into the office to gather
video footage for police officers to view. Stroope indicated that her store had been
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robbed several times previously. The manager estimated that approximately $100-150
was taken during this robbery.
{¶ 13} As other police units canvassed the area, Detective Mark Orick responded
to the store. Orick was familiar with the store’s surveillance system. A week and a half
prior to the robbery, he had been assigned to the store to operate the camera system in
anticipation that the store could be robbed again. Upon responding to the Dollar
General, the detective reviewed the surveillance video. Detective Orick studied the logo
on the robber’s sweatshirt and ascertained that the logo belonged to a company called
“Self Made.”
June 10 Evening Robbery – Dollar General at 445 Salem Avenue
{¶ 14} Later on June 10, Kendall Simmons was working at the Dollar General store
at 445 Salem Avenue at the intersection of Salem and Grand Avenues. An assistant
manager, a custodian, and a co-worker named Deron were also working at the store that
evening. At approximately 8:30 p.m., Simmons and Deron were working at the registers
while the assistant manager was in the office. At 8:33 p.m., a man in a black hoodie with
a “Self Made” logo on the front, “Self Made” sweatpants, and red Nike shoes came into
the store. Although his hood was up, the man’s left hand was by his side, and his right
hand was below his chin, making his face initially visible on the interior surveillance
camera of the front door. The man cinched the hoodie with his right hand, approached
Deron (who was at the register closest to the door), briefly pointed a gun at him, and told
Deron to give him money. Deron opened the register and backed away. The robber
climbed over the bagging area and took cash from the register. The robber was not
wearing gloves.
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{¶ 15} The robber then approached Simmons at his register and told him to open
it. Simmons “fiddled with the drawer,” trying to buy time for the police to come. After a
few moments, the robber lost patience and headed back toward the door. He climbed
back over the bagging area and went to the exit, holding his hoodie closed with his right
hand. As the robber walked out of the store, he had both hands by his left pocket and
then by his sides. The robber’s face was visible on the surveillance video of the exterior
of the front door. Witnesses reported to the police dispatcher that the robber ran down
the alley behind the store.
{¶ 16} Officer Jeffrey Downing, an evidence technician, responded to the report of
a robbery at the Dollar General store. After talking with Officer Burch, who was already
at the scene, Officer Downing viewed surveillance video to see where the perpetrator may
have touched. Downing then dusted around Registers 1 and 4 for fingerprints and
swabbed around Register 1 for DNA.
{¶ 17} Officers Dustin Daugherty and David Eck were dispatched to 445 Salem
Avenue on a report of a robbery in progress. The officers did not respond directly to the
store and, instead, drove around in search of a suspect. While driving on northbound
Grafton Avenue just south of West Grand Avenue, a short distance from the Dollar
General store, the officers observed a hooded sweatshirt lying in the middle of the
roadway. The officers called for an evidence technician.
{¶ 18} Officer Downing went from the store to Grafton Avenue, photographed the
hoodie, and collected it. Downing also was notified that a pair of red Nikes were found
on Federal Street approximately a block from the store. Downing went to that location
and collected the shoes. He took the items to the police department’s evidence garage,
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where he swabbed around the collar and sleeves of the sweatshirt for DNA.
{¶ 19} Detective Justin Ellis was the primary detective on the June 10 robbery of
the Dollar General store. On June 12, he and his partner, Detective Heiser, drove the
sweatshirt and shoes to the Ohio Bureau of Criminal Investigation (BCI) for analysis.
The Identification of Wright as a Suspect
{¶ 20} Logan Schepeler, a forensic scientist in the DNA section of BCI, performed
DNA testing on four swabs submitted by the Dayton Police Department. The swabs
were taken from the inside collar area of the sweatshirt, a tag from the sweatshirt, and
each cuff of the sweatshirt (the shoes were not tested). The swabs from the cuffs did
not have enough DNA for Schepeler to make a comparison. Testing from the collar and
the tag, however, revealed two major DNA contributors. Schepeler compared the
contributors’ DNA profiles against known DNA profiles in a database, which included
Wright’s DNA profile; Wright’s DNA previously had been submitted to the database in
August 2017. Wright was determined to be a major contributor for the DNA samples
from the tag and collar submitted by the Dayton police.
{¶ 21} At approximately 9:00 a.m. on July 10, 2019, detectives received an email
from BCI with the DNA results. That morning, Detectives Ellis and Curley spoke with
Rodney Howell, a State of Ohio employee, who knew Wright through his employment and
had met with Wright on four or five occasions for approximately an hour each. Howell
told the detectives that he knew where Wright lived. Howell and the detectives met at
Wright’s residence on Burkhardt Avenue. Wright was not there. Howell attempted to
call Wright but was unable to reach him. The detectives showed Howell a photograph
taken from one of the surveillance videos from the fourth robbery (Salem Avenue Dollar
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General). Howell told the detectives that Wright was the individual in the photograph.
{¶ 22} While Howell and Dayton detectives and police officers waited at Wright’s
residence for Wright to return, the police received a report of another armed robbery at a
Family Dollar on Main Street. Howell and Detectives Curley and Ellis remained at the
residence while other officers and detectives responded to the robbery. Approximately
ten to 20 minutes later, Howell received a phone call from Wright, who said that he
(Wright) had just woken up and wanted to talk. Wright told Howell that he was at 1302
North Main Street. Howell relayed the address to the detectives, who then left to go
there.
July 10 Robbery – Family Dollar at 1130 North Main Street
{¶ 23} During the morning of July 10, 2019, Paige Hayes was working as a cashier
at the Family Dollar store at 1130 North Main Street at the intersection of Main and Helena
Streets. The assistant manager, Marcus, was also there. At 10:56 a.m., while Marcus
was in the back, a man wearing a black hoodie, inside-out gray sweatpants, and black
shoes came into the store. An employee told the dispatcher that the hoodie was a Nike
sweatshirt. Detective Curley testified that the surveillance video showed it was a
Champion hoodie. The man pulled a black gun out of the left pocket of his hoodie,
walked in front of the check-out counters, and went behind the counter to Hayes. Hayes
was at Register 2, the register farther away from the door. The man told Hayes to unlock
the register. After Hayes responded that she could not do that, the man “cocked his
weapon back and a bullet flew out” onto the floor. Hayes opened the register, and the
man took the cash.
{¶ 24} The robber then told Hayes to open Register 1. Hayes was unable to do
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so, because she did not have access. She called to Marcus, her co-worker, who had
access to register 1. While waiting, the robber kept his right hand pulling on the strings
of his hoodie so his face would not show. Marcus approached the register, carrying a
box-cutter, which he placed on the counter. The robber pushed the box-cutter off of the
counter with his gun. After opening the register, Marcus and Hayes stepped away. The
robber took the money from the register with his right hand and put it in his pocket. He
picked up the money tray, looking for bills underneath, and dropped it, causing coins to
scatter on the floor. The robber then turned to leave, looking under the money tray of
Register 2 as he walked by it. The man fled the store with approximately $200. Hayes
called the police.
{¶ 25} Officers Jared Burson and Gary Lowe responded to the Family Dollar store.
When they arrived, the parking lot was empty and the front doors to the store were locked.
Upon entering the store, Officer Burson noticed that the registers were open, and one
register had its tray taken out.
{¶ 26} Officer Robert Cleaver heard the dispatch and reported with his canine
partner, Phantom. Cleaver spoke with the officers at the scene and learned that the
suspect had gone across the street and down an alleyway that ran parallel to Main Street.
Officer Cleaver got Phantom from the cruiser, went to the alleyway, and gave Phantom
the command to track. Phantom put his nose to the ground to see if he could pick up a
scent, then proceeded down the alley. At a couple of locations, Phantom stopped and
turned his head to the left, but he continued down the alley.
{¶ 27} After another block or two, Phantom indicated that he had lost the scent.
They turned around and headed back down the alley. At the same location where
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Phantom had stopped before and turned his head, Phantom again stopped and turned
his head in the same direction. This time, Officer Cleaver saw a couple of detectives,
including Detective Curley, standing at the house located at 1302 North Main Street.
{¶ 28} The police located Wright at 1302 Main Street, the home of Andre Carpenter
and Debra Horton, approximately 500 feet from the Family Dollar store. Carpenter and
Horton allowed the police to search their home. Officers located a black Champion
hoodie consistent with the one worn by the robber.
Additional Investigation
{¶ 29} After Wright’s arrest, Detective Ellis interviewed him. During that interview,
the detective provided Wright a Miranda form, which Wright signed. Ellis noticed that
Wright signed the paperwork using his left hand and held the paper still with his right
hand. At trial, Ellis identified a photograph that showed Wright as he looked when the
two men met. The photograph showed that Wright had a receding hairline and a large
tattoo on his neck.
{¶ 30} On August 9, Detective Ellis again met with Wright and collected a DNA
sample from him. A few days later, Detective Ellis drove Wright’s DNA sample to BCI
for comparison against the DNA profiles from the sweatshirt. Schepeler compared the
new sample of Wright’s DNA against the DNA profiles from the “Self Made” sweatshirt.
Wright again was found to be a major contributor to the DNA samples found on the tag
and collar. Schepeler also was asked to compare Andre Carpenter’s DNA against the
samples from the sweatshirt. Testing showed that Carpenter was not one of the two
major contributors to the DNA on the tag and collar.
{¶ 31} Detectives took measurements in the stores to determine the height of the
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robber, as shown in surveillance video. Measurements indicated that the robber at each
store was 5’10” or 5’11” tall. Detective Curley testified that Wright was approximately
5’11” tall. At some point, detectives showed Howell the surveillance video from the fourth
robbery. Howell identified Wright as the person in the surveillance video.
Procedural History
{¶ 32} On July 18, 2019, Wright was indicted on five counts of aggravated robbery,
each with a firearm specification. In November 2019, he filed a motion to dismiss the
charges on speedy trial grounds. The trial court overruled the motion, reasoning that the
triple-count provision of R.C. 2945.71 did not apply because Wright was under post-
release control and subject to a hold order from the Adult Parole Authority. Wright did
not file a motion to suppress any of the evidence against him.
{¶ 33} The matter proceeded to a jury trial in June 2020. After deliberating, the
jury found Wright guilty of four of the aggravated robberies and accompanying firearm
specifications. It acquitted him of the May 31 robbery of the Dollar General store on
Linden Avenue (Count 2). The trial court sentenced Wright on Counts 1, 3, 4, and 5 to
an indefinite sentence of a minimum of four years and a maximum of six years in prison,
with an additional three years for the firearm specification. The specifications in Counts
4 and 5 were run consecutively to each other. Wright’s aggregate sentence was a
minimum of 10 years and a maximum of 12 years in prison.
{¶ 34} Wright appeals from his convictions, raising five assignments of error. We
will address them in an order that facilitates our analysis.
II. Manifest Weight of the Evidence
{¶ 35} In his second assignment of error, Wright claims that his convictions were
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against the manifest weight of the evidence.
{¶ 36} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 19. When reviewing an argument challenging the weight of the
evidence, an appellate court may not substitute its view for that of the trier of fact.
Rather, we review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether, in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 37} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684,
*4 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does
not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14.
A judgment of conviction should be reversed as being against the manifest weight of the
evidence only in exceptional circumstances. Martin at 175.
{¶ 38} In his appellate brief, Wright argues that the jury could not have reasonably
concluded that he was the perpetrator of the offenses, and he details the differences
between each of the robberies of which he was convicted. He emphasizes that
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witnesses could only see a small portion of the perpetrator’s face and no witness at any
scene identified the robber. Witnesses provided varying heights for the perpetrator, and
the robber wore different clothing and shoes in each robbery; some of the clothing was
different even between the two robberies on June 10, 2019. Kendall Simmons, the
employee at the Dollar General store on Salem Avenue, testified that the “Self Made” logo
was “pretty common.” In the first robbery (Wayne Avenue), a witness indicated that the
robber was wearing glasses and a mask, and another witness identified the gun as matte
gray. In other robberies, witnesses did not mention glasses, and the gun was described
as black. No fingerprints or DNA evidence was located at the stores. Wright further
notes that, while the State contended that the robber was left-handed, that characteristic
is not uncommon. Wright thus argues that due to the discrepancies in the robberies and
the lack of a nexus between the individual robberies, his convictions were against the
manifest weight of the evidence.
{¶ 39} We recognize, as Wright asserts, that no eyewitness or physical evidence
at the scenes connected Wright to the robberies. In addition, the jury could have
reasonably concluded (as it apparently did with respect to the second robbery) that Wright
did not commit all of the robberies due to discrepancies between the incidents.
Nevertheless, upon review of the entire record, we cannot conclude that the jury lost its
way in convicting Wright of the robberies on April 20, June 10, and July 10.
{¶ 40} The State presented substantial evidence that Wright committed the
robbery of the Dollar General store at 445 Salem Avenue, the fourth robbery. The
perpetrator of that robbery entered the store wearing a “Self Made” black hoodie, “Self
Made” sweatpants, and red Nike shoes. Although the man cinched the hood of the
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sweatshirt to hide a portion of his face during the robbery, his face was visible on
surveillance video as he both entered and exited the store. Upon being shown a
photograph taken from the surveillance video, Rodney Howell identified the individual in
the photograph as Wright. Howell also identified Wright at trial, and when shown the
surveillance video of the fourth robbery at trial, Howell testified that he recognized Wright
“from the beginning when he walked in.” Shortly after the robbery, officers located a “Self
Made” sweatshirt lying in the middle of the roadway with a few blocks of the Dollar General
store on Salem. DNA testing from the collar area of the sweatshirt revealed that Wright
was one of two major contributors to the DNA. Given the evidence at trial, Wright’s
conviction for the robbery of the Dollar General store at 445 Salem Avenue was not
against the manifest weight of the evidence.
{¶ 41} Although no one identified Wright as the perpetrator of the fifth robbery (the
robbery of the Family Dollar store at 1130 North Main Street), circumstantial evidence
supported the jury’s conclusion that Wright also committed this robbery. The robber
wore a hooded sweatshirt and sweatpants similar in style to those worn during the fourth
robbery, and consistent with the robbery on Salem Avenue, the robber of the Family Dollar
store held his hoodie closed with his right hand while holding a gun in his left hand. After
obtaining cash from both registers, the man left on foot and went into the nearby
neighborhood. A canine officer tracked the perpetrator for a distance along an alley that
ran parallel to North Main Street. Wright was discovered shortly after the robbery at a
home located approximately 500 feet from the Family Dollar store, close to where the dog
tracked. Officers found a black Champion hooded sweatshirt, consistent with the one
worn by the robber, inside the home where Wright was located. Based on the evidence
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presented at trial, we cannot conclude that the jury lost its way when it convicted Wright
of the 1130 North Main Street Family Dollar store robbery.
{¶ 42} There was less evidence linking Wright to the April 20 robbery of the Family
Dollar store on Wayne Avenue and the June 20 robbery of the Dollar General store at
2310 North Main Street. Nevertheless, there was circumstantial evidence supporting his
participation in those robberies. The police received a detailed description of the
perpetrator of the Wayne Avenue robbery, including his height, his clothing, and that he
was balding and had a tattoo on his neck. Wright matched the description of the robber.
{¶ 43} The State also presented evidence that the robberies between April 10 and
July 10 exhibited numerous commonalities, such that the jury could reasonably conclude
that the same individual committed all of the offenses. In each of the robberies, the
perpetrator wore a hooded sweatshirt, which the man kept cinched using his right hand.
During the two robberies on June 10, the robber wore the same “Self Made” hooded
sweatshirt. In each robbery, the man drew a gun with his left hand from his sweatpants
pocket. In two of the robberies – the first and the fourth – the robber racked the gun
inside the store.
{¶ 44} The robber’s behavior generally was consistent among all the robberies –
the man entered the store, went behind the counter, displayed the gun, obtained cash,
went back the way he came, and fled the store. Only paper money was taken; the coins
were left behind. In several surveillance videos, the robber can be seen taking money
from the registers with his right hand and placing the cash in his sweatshirt pockets. He
also can be seen shaking his sleeve down to cover his hand. The surveillance videos
did not have audio, but Detective Curley testified that the robber of both Family Dollar
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stores (April 20 and July 1) said similar commands to the cashiers, specifically, “Give me
everything.” Tonia Smith likewise stated in her 911 call for the third robbery that the
robber told her to give her everything.
{¶ 45} Although witnesses from the different stores provided various heights for
the robber, Detective Curley went to the stores and measured the stickers on the security
scanners by the doors. Curley then reviewed the surveillance videos and compared the
height of the robber against his measurements. The detective determined that the
robber was 5’10” or 5’11” tall. Detective Curley testified that he met Wright on July 10
and that Wright is 5’11” tall.
{¶ 46} The State presented the surveillance videos for each of the robberies, and
the jury was able to view the perpetrator’s appearance, mannerisms, and behavior during
each robbery. In addition, the jurors heard the 911 calls and the testimony of the
witnesses. It was the province of the jury to assess the witnesses’ credibility and
determine whether the State proved, beyond a reasonable doubt, that Wright committed
each of the robberies. Although there was evidence from which the jury could have
questioned whether the same person committed each of the robberies, we cannot
conclude that the jury lost its way in finding that Wright committed the four robberies on
April 20, June 10, and July 10.
{¶ 47} Wright’s second assignment of error is overruled.
III. Prosecutorial Misconduct
{¶ 48} In his third assignment of error, Wright claims that the prosecutor engaged
in misconduct when she elicited testimony from the DNA forensic analyst that suggested
that Wright had a prior conviction.
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{¶ 49} When reviewing a claim of prosecutorial misconduct, we must determine
whether the prosecutor’s conduct was improper and, if so, whether that conduct
prejudicially affected the defendant’s substantial rights. State v. Kirkland, 160 Ohio St.3d
389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 115; State v. St. John, 2d Dist. Montgomery No.
27988, 2019-Ohio-650, ¶ 109-110, citing State v. Martin, 2d Dist. Montgomery No. 22744,
2009-Ohio-5303, ¶ 15. “A prosecutor’s conduct during trial cannot be grounds for error
unless the conduct deprives the defendant of a fair trial.” St. John at ¶ 109; State v.
Williams, 2d Dist. Montgomery No. 24548, 2012-Ohio-4179, ¶ 51, citing State v.
Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). “The touchstone of due
process analysis * * * is the fairness of the trial, not the culpability of the prosecutor.”
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Kirkland at
¶ 115.
{¶ 50} “Where it is clear beyond a reasonable doubt that the trier of fact would have
found the defendant guilty, even absent the alleged misconduct, the defendant has not
been prejudiced, and his conviction will not be reversed.” St. John at ¶ 110. We review
allegations of prosecutorial misconduct in the context of the entire trial. State v.
Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v.
Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
{¶ 51} In addition, curative instructions are given as a means of remedying errors
or irregularities that occur during trial. State v. Green, 2d Dist. Montgomery No. 28614,
2020-Ohio-5206, ¶ 86, citing State v. Artis, 2019-Ohio-2070, 137 N.E.3d 587, ¶ 50 (3d
Dist.). We generally presume that a jury will follow the trial court’s limiting instructions
concerning the evidence that may be considered and for what purpose, as well as curative
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instructions to disregard testimony. Id. at ¶ 87, citing, e.g., State v. Ahmed, 103 Ohio
St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93.
{¶ 52} On May 31, 2020, the day before trial, Wright filed a motion in limine, asking
the trial court to prohibit the State from presenting, among other things, evidence that he
had a prior criminal record (which included a prison sentence). Wright postulated that
the State would likely present evidence that a DNA sample was obtained from him in 2017
when he was convicted and sent to prison. That 2017 DNA sample was used to match
DNA found on the sweatshirt in this case.
{¶ 53} Prior to opening statements, the trial court and the parties addressed the
motion in limine outside the presence of the jury. The court confirmed with defense
counsel that he was asking that information about how Wright’s DNA was entered into
the database not be presented at trial. The court asked the prosecutors how they
planned to avoid this information. The prosecutor responded that the State would avoid
the timeline of events and not say “CODIS [Combined DNA Index System] hit.” The
prosecutor continued: “[I]f the timeline of events is not challenged we plan on indicating
he became a suspect [and] it was confirmed by DNA later on.” The State reserved the
right to clarify the timeline of the DNA analysis if the timeline were challenged under cross-
examination.
{¶ 54} During defense counsel’s cross-examination of Detective Ellis on the
second day of trial, defense counsel established that Ellis met with Wright and obtained
a DNA sample. Counsel then asked Ellis when that had occurred. Ellis responded that
he did not recall the date. (Tr. at 335.) The prosecutor then asked to approach the
bench and told the court that the questioning was getting into the entry of Wright’s DNA
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into CODIS. An extensive sidebar conversation about Wright’s DNA samples followed.
{¶ 55} The parties and the court discussed whether the State could elicit evidence
about how Wright was developed as a suspect. The court expressed to the prosecutor
that the State could address how Wright became a suspect without establishing how
Wright’s DNA was placed in the database. (Tr. at 339.) The court explained that the
State could say that the sweatshirt was swabbed and compared, and a suspect was
identified. (Tr. at 341.) Defense counsel agreed that that State “should be allowed to
say that they used a sample of Mr. Wright’s DNA [to develop a suspect]. But I just don’t
want them [the jury] to even know where it came from. So as long as they [the State]
just don’t say where it came from.” (Tr. at 343.) The court ultimately summarized: “They
[the State] are allowed to say that prior to July 10th that the crime lab was able to process
the evidence and develop a suspect (indiscernible) based on the evidence that was
submitted.” (Tr. at 344.)
{¶ 56} The next day, Schepeler testified about his testing of DNA samples from the
“Self Made” sweatshirt submitted by Detectives Curley and Ellis. Schepeler told the jury
that BCI has “a database that we use and we can put DNA profiles from items of evidence
and those profiles are searched against one another within the database to potentially
identify someone that may have contributed the DNA to the sample.” (Tr. at 381.)
Schepeler stated that the DNA profiles of the major contributors of the DNA from the collar
area of the sweatshirt were entered into the database for comparison, and there was a
“hit” on Wright. Schepeler testified, without objection, that Wright’s DNA was already
stored in the database. (Id.)
{¶ 57} Schepeler next testified that when a DNA sample has not been submitted
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directly to BCI’s Case Work Section, BCI would request the agency (e.g., police
department) to collect a DNA standard and submit it for an additional comparison between
the evidence and the standard. Turning to Wright’s situation, the prosecutor then asked,
without objection:
Q: Now, in this case, was it a little more unique to the point that there was
a previous standard that was actually submitted directly to BCI?
A: Yes, directly to our Case Work section.
Q: And was that submitted by the Riverside Police Department back on
August 4th of 2017?
A: Yes.
Q: And what were you able to do with that information?
A: Since that DNA standard had already been submitted for case work
purposes, we had electronically stored the DNA profile from the item so
even though it’s from 2017, I’m still able to go back onto our server where
all of the data is stored and I’m able to pull up that DNA profile and actually
use that for a comparison despite us not receiving a, quote-unquote, new
standard.
Q: And did you perform the DNA comparison we described earlier in your
testimony, the fourth step, on the Riverside 2017 standard?
A: So that process had already by completed back in 2017, when that item
was reported to Riverside, so I didn’t actually go through that entire process.
Basically, I reviewed the underlying data and controls and all of that but the
DNA profiles had already been generated so the process had been done a
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couple years prior.
Q: And did you compare that to then the sweatshirt DNA?
A: Yes.
Q: And what results did you obtain from that?
A: Vincient Wright was included as one of the major contributors for both
the sample from the tag and the sample from the collar of the sweatshirt.
(Tr. at 382-383.) After discussing these results further, Schepeler testified that a new
DNA standard for Wright was submitted, and he again compared the DNA profiles from
the sweatshirt against the new standard, which confirmed the prior results.
{¶ 58} In light of the trial court’s rulings regarding the development of a suspect,
the prosecutor exceeded the permissible scope of direct examination when he asked
Schepeler about how Wright’s DNA initially was entered into the database.
Nevertheless, considering the trial as a whole, we cannot conclude that Wright was
denied a fair trial due to evidence that a DNA standard had been submitted to BCI in 2017
by the Riverside Police Department. Although Schepeler’s testimony indicated that
Wright had prior contact with the police, the jury was not informed of the basis for and the
outcome of that contact, including whether Wright had any prior convictions.
{¶ 59} Moreover, prior to closing arguments, the trial court provided a limiting
instruction to the jury regarding Schepeler’s reference to the Riverside Police
Department’s submission of Wright’s DNA standard to BCI. The court stated:
During the testimony this morning of Logan Schepeler, the forensic
scientist, he testified that when completing his initial DNA analysis on the
hooded sweatshirt in Exhibit 4Q, he made reference to a 2017 Riverside
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case. You can give this part of his testimony no consideration and you
should not consider it in any manner except that it may be considered for
the fact that he completed DNA analysis in this case. All other parts of his
testimony you may consider in the normal course of your deliberations in
accordance with the instructions I’m about to read to you. * * *
(Tr. at 454.)
{¶ 60} Although the presumption of a jury following a limited curative instruction
may be overcome, we do not find that the brief reference to Wright’s providing a DNA
sample to the Riverside Police Department was so inflammatory that it could not be
ignored.
{¶ 61} Wright’s third assignment of error is overruled.
IV. Ineffective Assistance of Counsel
{¶ 62} In his first assignment of error, Wright claims that his trial counsel rendered
ineffective assistance in five respects. He argues that his counsel was deficient in failing
to (1) file a motion to suppress the identification by Rodney Howell, (2) investigate the
identity of an employee-witness at the first robbery, (3) object to Stroope’s testimony
regarding surveillance video, (4) object to references to the robber as “defendant,” and
(5) object to the CODIS-related identification of Wright.
{¶ 63} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
probability that, but for the errors, the outcome of the case would have been different.
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
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State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not
permitted to distort the assessment of what was reasonable in light of counsel’s
perspective at the time, and a debatable decision concerning trial strategy cannot form
the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d
516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38
(2d Dist.). Trial counsel is also entitled to a strong presumption that his or her conduct
falls within the wide range of reasonable assistance. Strickland at 689.
A. Motion to Suppress
{¶ 64} Wright first argues that his trial counsel should have filed a motion to
suppress the identification by Howell. The failure to file a suppression motion is not per
se ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721
N.E.2d 52 (2000); State v. Craver, 2d Dist. Montgomery No. 28748, 2020-Ohio-5407,
¶ 30. Rather, “[t]he failure to file a motion to suppress constitutes ineffective assistance
of counsel only when the record establishes that the motion would have been successful
if made.” State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-19, 2020-Ohio-3681, ¶ 53.
{¶ 65} A pretrial identification derived from inappropriately suggestive procedures
which cause a substantial likelihood of misidentification violates a defendant’s right to due
process. Neil v. Biggers, 409 U.S. 188, 196-198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972);
State v. Kelly, 2d Dist. Clark No. 2020-CA-8, 2021-Ohio-325, ¶ 12.
{¶ 66} “Courts apply a two-step test to determine the admissibility of a challenged
identification. First, the defendant must show that the identification procedure was
unduly suggestive. We have recognized that a show-up identification procedure, which
involves showing just one individual to an eyewitness, as opposed to a lineup of different
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individuals, is inherently suggestive. E.g., State v. Henderson, 2d Dist. Montgomery No.
28241, 2020-Ohio-6, ¶ 20; State v. Martin, 127 Ohio App.3d 272, 277, 712 N.E.2d 795(2d Dist.1998).
{¶ 67} When a defendant shows that the pretrial identification procedure was
unduly suggestive, the court must then consider whether the identification, viewed under
the totality of the circumstances, was reliable despite the suggestive procedure. See
Williams at ¶ 13. In reviewing the likelihood that the circumstances resulted in a
misidentification, courts have considered the opportunity of the witness to view the
perpetrator at the time of the offense, the witness's degree of attention, the accuracy of
the witness's prior description of the perpetrator, the level of certainty demonstrated by
the witness at the confrontation, and the length of time between the crime and the
confrontation. Biggers at 199-200; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243,
53 L.Ed.2d 140 (1977); State v. Bates, 110 Ohio St.3d 1230, 2006-Ohio-3667, 850 N.E.2d
1208, ¶ 8. (We have previously commented that some of the factors identified in Biggers
may bear reconsideration in light of the significant advancement of scientific
understanding of memory. E.g., State v. Green, 2d Dist. Montgomery No. 28614, 2020-
Ohio-5206, ¶ 21, fn. 1.) Nevertheless, “[a]gainst these factors is to be weighed the
corrupting effect of the suggestive identification itself.” Manson at 114.
{¶ 68} Reliability of the pretrial identification is the linchpin in determining its
admissibility. Id. “So long as the identification possesses sufficient aspects of reliability,
there is no violation of due process.” State v. Sherls, 2d Dist. Montgomery No. 18599,
2002 WL 254144, *3 (Feb. 22, 2002); Green at ¶ 22. Accordingly, “an individual show-
up identification procedure may survive constitutional challenge if there is evidence that
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it is sufficiently reliable.” Martin at 277.
{¶ 69} In this case, the detectives showed Howell a still photograph of Wright from
surveillance video of the fourth robbery. Although Howell was not present at any of the
robberies, the nature of the inquiry reasonably suggested that the individual in the
photograph was of interest to the police. Detectives Ellis and Curley had already
received the email from BCI with DNA results from the sweatshirt, identifying Wright as a
contributor to the DNA. The detectives thus knew that Wright was a suspect in the
robbery when they showed the photograph to Howell.
{¶ 70} Even assuming that the detective’s procedure was unduly suggestive, the
totality of the circumstances indicated that the identification was reliable. Howell testified
at trial that he knew Wright through his employment and that the two men had met for an
hour each on four or five occasions. Howell previously had spoken with Wright on the
phone and knew Wright’s address. In short, Howell was familiar with Wright prior to the
identification, and Howell’s testimony indicated that Howell was able to identify Wright on
sight. Wright’s testimony at trial reflected that he was certain of his identification. There
is no information in the record that the detectives suggested to Howell, prior to the
identification, that Wright was the person depicted in the still photograph. Although the
surveillance video of the Salem Avenue Dollar General showed the robber’s face from an
angle, that fact is more relevant to the weight to be given to the identification, not its
admissibility. On this record, we cannot conclude that a motion to suppress Howell’s
identification would have been successful. Consequently, trial counsel was not
ineffective when he did not file a motion to suppress the identification of Wright.
B. Failure to Identify Potential Witness
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{¶ 71} Wright next claims that his trial counsel acted deficiently by failing to identify
a store employee at the Family Dollar on Wayne Avenue who had information that was
potentially favorable to the defense.
{¶ 72} During the cross-examination of Officer Victor regarding the first robbery,
defense counsel asked the officer if he had received a description of the robber. During
follow-up questioning, defense counsel asked, “Did any of them say that they felt his [the
robber’s] voice was familiar?” Officer Victor responded, “There was a store clerk who
said that his voice possibly sounded familiar.” (Tr. at 161.) When counsel next asked
if the employee indicated who that person might be, the prosecutor objected on hearsay
grounds.
{¶ 73} The court and counsel discussed the objection at sidebar. The court asked
defense counsel if he planned to call the store clerk, to which counsel responded “no.”
The court made an initial ruling that he was asking for hearsay. Defense counsel
asserted that the clerk’s statement was a present sense impression, as it was made to
an officer shortly after the robbery occurred, and that the clerk stated that she thought
that the robber was “some guy named August that she knows.” The prosecutor
countered the clerk’s statement was not an excited utterance and was speculative. The
court again expressed concern that the clerk’s statement was hearsay and asked if
defense counsel could call her to testify. Defense counsel indicated that he did not know
the clerk’s identity, because the police report “just indicates someone told him that.”
{¶ 74} After a brief recess to research that matter, the trial court sustained the
State’s objection, ruling the clerk’s statement was not a present sense impression. The
court told defense counsel, “You cannot ask him [Officer Victor] anything about the store
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clerks[’] saying that it may have been an ‘X’ individual or it may have sounded like
someone that I know named ‘X’ or someone that I recognize named ‘X.’ ”
{¶ 75} Even assuming, for sake of argument, that counsel should have
investigated the employee’s identity and questioned the employee about the perpetrator’s
voice, the record does not reflect how that employee would have testified at trial. We
cannot speculate what information she would have provided had she testified.
Accordingly, Wright has not shown that a reasonable probability exists that the outcome
of his trial on Count 1, the first robbery, would have been different had defense counsel
identified the employee and called her to testify.
C. Failure to Object to Witness’s Testimony regarding Surveillance Video
{¶ 76} Third, Wright claims that his trial counsel rendered ineffective assistance by
failing to object to Sommer Stroope’s testimony about what occurred on the surveillance
video at her store, the Dollar General store at 2310 North Main Street. Wright argues
that Stroope was uncertain whether the video accurately displayed what occurred during
the third robbery, and thus the video was not properly authenticated. Wright contends
that the surveillance video and corresponding photographs were improperly displayed to
the jury and admitted as evidence, to his prejudice.
{¶ 77} Authentication is governed by Evid.R. 901. “Evid.R. 901(A) requires, as a
condition precedent to the admissibility of evidence, a showing that the matter in question
is what it purports to be.” State v. Simmons, 2d Dist. Montgomery No. 24009, 2011-
Ohio-2068, ¶ 12. “The threshold standard for authenticating evidence is low, meaning
that the party seeking to introduce the disputed evidence need only demonstrate ‘a
reasonable likelihood that the evidence is authentic.’ ” (Citations omitted.) State v.
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Shropshire, 2d Dist. Montgomery No. 28659, 2020-Ohio-6853, ¶ 11. Evid.R. 901(B)
provides examples of several ways that the authentication requirement may be satisfied.
The most commonly used method is oral testimony that a matter is what it is claimed to
be under Evid.R. 901(B)(1). E.g., State v. Quarles, 2015-Ohio-3050, 35 N.E.3d 616,
¶ 34 (2d Dist.); State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 30.
{¶ 78} Stroope, the assistant manager at the 2310 North Main Street Dollar
General store, testified that after she was alerted that the store had been robbed, she
went into the office to gather the surveillance video for responding officers to review.
When the officers arrived, Stroope “directed them to the office because I had everything
up on view so they could see exactly what happened.” (Tr. at 205.) Stroope stated that
she worked with Detective Orick, with whom she had previously worked regarding
surveillance at the store. Stroope and Orick reviewed the surveillance video.
{¶ 79} The prosecutor and Stroope had the following exchange about the video.
Q: * * * did the cameras in the store accurately depict what’s going on in the
store?
A: I believe they did.
Q: And did the video that you reviewed accurately depict what was going
[sic] in the store?
A: Yes, ma’am.
***
Q: And you previously stated that [the surveillance video] accurately
depicts what occurred that day?
A: I believe it does. I don’t know if it – I mean – yes. I mean to my
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knowledge, as of now, I believe it does.
Q: What would make you say it didn’t?
A: Well, it’s just been so long, you know, and my memory but it should
from what I recall watching it, it should have the basic information of the
robbery on there.
(Tr. at 206-207.)
{¶ 80} The prosecutor then showed Stroope several photographs of the store,
Exhibit 3C-E. Stroope testified that the photographs accurately reflected the state of the
store on the date of the robbery. The prosecutor then played the surveillance video,
without objection. Stroope described certain events as they occurred on the screen, and
she indicated that other camera angles were not downloaded from the system. When
asked if “what you saw on there was accurate as it was recorded,” Stroope replied, “Yes,
ma’am.” (Tr. at 212.)
{¶ 81} Detective Orick testified after Stroope. He stated that he had prior
experience with the surveillance system at that store, and when he arrived there after the
robbery, “[t]he store manager gained access to me into the office and then I immediately
began to sit down and manipulate the camera system.” (Tr. at 221.) After the
prosecutor played part of the surveillance video for the detective, Orick testified that he
remembered watching that video immediately after responding to the scene. He further
stated that the video was a “fair and accurate” depiction of what he viewed on the day of
the robbery.
{¶ 82} Stroope’s and Detective Orick’s testimony was sufficient to authenticate the
surveillance video of the robbery of the Dollar General store at 2310 North Main Street.
-31-
Due to the passage of time since the robbery, Stroope was somewhat equivocal when
she initially was asked if the footage accurately displayed what had occurred. However,
after viewing the video, she stated that the video accurately reflected what had been
recorded on the day of the robbery. Detective Orick likewise confirmed during his
testimony that the video played at trial was an accurate recording of what he reviewed
immediately after the robbery occurred. Defense counsel did not render ineffective
assistance when he failed to object to the admission of the surveillance video and
Stroope’s testimony.
D. Failure to Object to References to the Suspect as “Defendant”
{¶ 83} Fourth, Wright claims that his counsel should have objected when the
prosecutor referred to the robber as the “defendant.” Wright argues: “This is not a trivial
point, as jurors were invited early-on in the testimony to identify the ‘suspect’ with the
‘defendant.’ Having this somewhat subtle psychological mental impression is of great
significance.”
{¶ 84} Wright cites to one instance where this occurred – during the testimony of
Kiel Hegemier, the second witness at trial. During the State’s redirect examination, Kiel
testified that he concluded, after conversations with his father, that he was mistaken in
his initial estimation of the perpetrator’s height. The prosecutor then asked:
Q: How long were you actually exposed to the defendant? How long did
you see him?
A: Just the duration of the robbery. I don’t know. A few minutes, a
couple minutes maybe at most.
(Emphasis added.) (Tr. at 139.)
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{¶ 85} We cannot conclude that trial counsel’s decision not to object was
ineffective. Trial counsel could have reasonably concluded that this isolated reference
to the robber as “the defendant” would have little effect on the jury and that an objection
would merely serve to highlight the reference. Counsel’s decision not to object to the
prosecutor’s phrasing was a matter of trial strategy, which generally does not constitute
ineffective assistance of counsel. Moreover, we find no reasonable probability that the
outcome of Wright’s trial was affected by the prosecutor’s phrasing of this single question.
E. Failure to Object to CODIS-related Identification
{¶ 86} Fifth, Wright claims that his trial counsel acted deficiently by failing to object
to three sets of questions regarding the CODIS database and the presence of his DNA in
that database. Wright argues that jurors could have concluded from that evidence that
the police identified him from a DNA standard submitted to BCI by the Riverside Police
Department due to additional criminal activity in 2017.
{¶ 87} The first set of questions occurred during Detective Ellis’s testimony. At
the beginning of Ellis’s redirect examination, the prosecutor stated that he wanted to
“clear up the timeline real quick.” Ellis then described how he and Detective Curley
delivered the sweatshirt to BCI on June 12, 2019 and received notice from BCI on July
10 that there was a match to Wright. The prosecutor then asked Ellis what the police do
to confirm initial DNA test results. Ellis responded:
A: When the suspect that they are given the name of gets taken into
custody. We then collect DNA and submit it to BCI for comparison.
Q: And is that unique to this case or is this a –
A: It’s every case.
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Q: So they do an initial hit, for the lack of better word, and then you get a
confirmation DNA swab and you submit it and like BCI tests it again.
A: Correct. They –
Q: Actually they probably request it from you, right? They’re not telling
you to do anything.
A: Yeah. They’ll submit what their finding is into the CODIS database.
Q: And I’m going to scratch that from the record.
A: Sure.
Q: So they – you just – you get a second – you ask them to retest it.
A: That’s correct.
(Emphasis added.) (Tr. at 351-352.)
{¶ 88} The second and third sets of questions occurred during Schepeler’s
testimony. Wright claims that defense counsel should have objected to a series of
questions regarding BCI’s initial findings. Specifically, he challenges the following
question: “And now in order for you to have a forensic hit, would that have meant Vincent
Wright’s DNA was already stored in the database?” (Tr. 381.) Wright also asserts that
defense counsel should have objected to the series of questions in which the prosecutor
elicited testimony that a sample of Wright’s DNA had been submitted to BCI by the
Riverside Police Department in 2017. (Tr. 382-383, quoted infra.)
{¶ 89} Beginning with the second series of questions, we find nothing improper
about the prosecutor’s question. The State had the burden to establish that Wright was
the perpetrator of the robberies of which he was charged, and the presence of Wright’s
DNA linking him to evidence obtained in the investigation was central to its evidence on
-34-
that issue. The State reasonably elicited testimony that Schepeler compared DNA
samples obtained from the “Self Made” sweatshirt against a “database” of DNA profiles
and that Wright’s DNA was in the database. Nothing in that testimony suggested the
source of the DNA profiles in the database or that Wright had previously engaged in
criminal activity. Defense counsel did not act deficiently in failing to object to these
questions.
{¶ 90} Detective Ellis’s testimony identified the database as the “CODIS
database.” The term “CODIS” was not defined for the jury, nor was the jury informed
that the database included a collection of DNA profiles of individuals who committed
certain criminal offenses. We do not find that a reasonable probability exists that the
outcome of Wright’s trial was affected by this passing reference to CODIS.
{¶ 91} Furthermore, upon hearing Ellis’s answer, the prosecutor stated that he was
going to “scratch that from the record.” Although the State had previously indicated that
it would avoid any references to CODIS, trial counsel could have reasonably concluded
that the prosecutor’s response to Ellis’s answer adequately addressed the improper
reference to CODIS and that any additional objection would merely have served to
emphasize the answer for the jury. Defense counsel’s failure to object was a reasonable
trial strategy.
{¶ 92} As for the questions related to how BCI received Wright’s first DNA
standard, the prosecutor’s questions indicated to the jury that Wright had prior contact
with the police, during which the Riverside Police Department collected his DNA. Even
assuming, however, that counsel should have objected to this series of questions, we
cannot conclude, upon consideration of the trial as a whole, that counsel’s failure to object
-35-
was prejudicial, particularly given the trial court’s limiting instruction regarding Schepeler’s
references to the Riverside Police Department.
{¶ 93} Wright’s first assignment of error is overruled.
V. Cumulative Error
{¶ 94} Finally, Wright claims that the cumulative effect of all the purported errors
deprived him of a fair trial.
{¶ 95} The cumulative error doctrine states that a conviction will be reversed where
“the cumulative effect of errors in a trial deprives a defendant of the constitutional right to
a fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623(1995). This doctrine, however, only applies where there are “multiple instances of
harmless error.” Id. Accordingly, for the cumulative error doctrine to apply, we must
find that (1) multiple errors were committed at trial, and (2) there is a reasonable
probability that but for the multiple errors, the outcome of the trial would have been
different. State v. Freeman, 2d Dist. Greene No. 2020-CA-33, 2021-Ohio-734, ¶ 61;
State v. Goldblum, 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 58.
{¶ 96} Wright has not demonstrated that multiple errors occurred. Consequently,
we cannot conclude that his convictions should be reversed due to cumulative error.
Wright’s fourth assignment of error is overruled.
VI. Conclusion
{¶ 97} The trial court’s judgment will be affirmed.
.............
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TUCKER, P. J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
David E. Stenson
Hon. Mary E. Montgomery