State v. Young , 101 N.E.3d 1056 ( 2017 )

[Cite as State v. Young, 2017-Ohio-9028.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-1144
v. : (C.P.C. No. 13CR-6391)
Clifford Young, Jr., : (REGULAR CALENDAR)
Defendant-Appellant. :
DECISION
Rendered on December 14, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: Timothy Young, Ohio Public Defender, and
Terrence K. Scott, for appellant. Argued: Terrence K. Scott.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Clifford Young, Jr., appeals from a December 18, 2015
judgment of the Franklin County Court of Common Pleas finding him guilty of aggravated
robbery with a firearm specification, robbery with a firearm specification, felonious
assault with a firearm specification, and having weapons while under disability ("WUD").
For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 4, 2013, appellant was indicted for aggravated robbery with a
firearm specification (Count 1 of the indictment), robbery with a firearm specification
(Count 2 of the indictment), robbery with a firearm specification (Count 3 of the
indictment), felonious assault with a firearm specification (Count 4 of the indictment),
No. 15AP-1144 2
and having weapons while under a disability (Count 5 of the indictment). (Dec. 4, 2013,
Indictment.)
{¶ 3} The case proceeded to trial in September 2015. However, the jury was
unable to reach a verdict and the trial court declared a mistrial. (Sept. 14, 2015 Entry.) On
November 9, 2015, a second trial commenced. As pertinent to this appeal, the facts are as
follows. The victim, B.B., testified that she worked as a prostitute. Periodically, she would
come from Lorain County to the Columbus area and rent a hotel room for up to one week
to provide sex services. In January 2013, B.B. rented a room for a one-week stay at the
Red Roof Inn on Brice Road in Reynoldsburg. During the early morning hours of
January 11, 2013, B.B. was renting room 231 when she received a call from a person she
believed to be a black male inquiring about her services. The two exchanged five phone
calls between 1:38 a.m. and 2:22 a.m. Eventually, a black man arrived at her hotel room
that she had never seen before and whose voice sounded like the man that called her. She
identified appellant as the man who called her and as her assailant.
{¶ 4} B.B. testified regarding the altercation as follows. Appellant entered the
room and looked around to ensure no one else was in the room. He asked for a cigarette
and she gave him one. Appellant pulled out a gun and ordered her to give him her money.
He cocked the gun and, when she realized he was serious, she grabbed the gun from him
and went into the fetal position with the gun underneath her arm. Appellant then got on
top of her and began punching her. She attempted to pull the trigger of the gun but it did
not fire. Appellant hit and bit her, broke some of her fingernails, and tried to burn her in
the face or eyes with the cigarette, but she was able to block it between her shoulder, chin,
and neck. At this point, appellant was able to gain control of the gun and he used it to
strike B.B. repeatedly, even after she begged for him to stop. B.B. told appellant where the
money was located and he took $811, her cellphone, and a computer. He left the room for
a short time and returned to take additional items. Eventually he left for good and B.B.
called the Columbus Police Department for help at 2:32 a.m.
{¶ 5} The police and emergency squad arrived and she was taken to Grant
Hospital. B.B. suffered numerous lacerations, a broken nose, a bite mark on her right arm,
and a cigarette burn. She required stitches, plastic surgery, and had a metal pin placed in
her finger. B.B. was released from the hospital on the evening of January 12, 2013 with a
No. 15AP-1144 3
discharge diagnosis of a concussion, nasal fracture, a closed fracture of the distal phalanx
of the finger, and facial cuts.
{¶ 6} Columbus Police Officer Ryan Van Fossan testified that he was dispatched
to the scene at 2:32 a.m. When he arrived B.B. was covered in blood and he did not
observe any indications that she was under the influence of drugs or alcohol. B.B.
described her assailant as a black male weighing approximately 250 pounds. Detective
Kevin Jackson investigated the crime scene and noted blood splatter on the mirror. The
detective also did not see any evidence of illegal drug use or drug paraphernalia in the
room.
{¶ 7} Columbus Police Department investigators swabbed the hotel room
telephone, collected fingernail tips and a partial cigarette butt, and submitted a DNA test
request for the same. The telephone swab DNA was consistent with B.B. (State's Ex. E5.)
DNA from the fingernail tips matched B.B. and at least one other person, however, the
appellant was excluded as a contributor. (State's Ex. E5.) DNA from the cigarette butt
matched appellant. (State's Ex. E2.)
{¶ 8} On October 27, 2013, Detective Jason Wood acted as a blind administrator
in showing a photo lineup to B.B. As such, he did not know which of the six black males
pictured was the suspect. B.B., as well did not know which of the men pictured, if any, had
been identified as a suspect. At this time, she did not know appellant's name, nor that his
DNA had been matched to the cigarette.
{¶ 9} When Detective Wood administered the photo lineup, he did not realize
that two of the photos, Nos. 4 and 6, were the same person, albeit different photos.
Appellant's photo, No. 3, was only featured once. The detective testified that placing two
of the same people in the lineup was a mistake that should have been caught by the
computer system that generates the photo arrays. He also testified that he could not tell
that they were the same person by looking at the array. B.B. never considered the photos
in position Nos. 4 or 6 as possibilities to be the perpetrator. She focused on photos of two
others, Nos. 2 and 3. B.B. told police she was 95 percent sure that No. 3, who was
appellant, was the perpetrator. She noted that appellant looked heavier in the photo than
he did when she saw him.
{¶ 10} B.B. also told investigators that the perpetrator had called her from a phone
number starting with 614-44. Because her cellphone was stolen in the robbery, she could
No. 15AP-1144 4
not look at it to find the remaining 4 numbers. Detective James Howe presented
testimony derived from unauthenticated AT&T cellphone records. The state did not seek
to introduce the AT&T records themselves but, rather, the analysis of information
received from AT&T by way of Detective Howe's "Cellular Review." (State's Ex. I.)
Detective Howe was admitted as an expert in the field of cellular phones, forensics, and
analysis, without objection. Trial counsel did not object to the introduction of the records,
or Detective Howe's Cellular Review, i.e., State's Ex. I.
{¶ 11} Detective Howe described that a court order for B.B.'s cellphone records
was obtained and, once received, he analyzed the records, as well as the area, and
prepared a report. The information from B.B.'s cellphone records demonstrated that B.B.
did receive several calls from a number starting 614-44, specifically 614-441-2949 ("target
number"), just as she had told detectives. Detective Howe's Cellular Report stated that
during the date and time of the incident the target phone accessed AT&T towers which
were in the vicinity of the crime scene and there were five contacts between the target
phone and B.B.'s phone between 1:38 a.m. and 2:22 a.m. on January 11, 2013.
{¶ 12} The state readily admitted throughout the trial, starting with opening
statements, that the AT&T records did not connect appellant to this phone, i.e., nothing in
the AT&T records named appellant as a liable party or user of the phone. Detective Howe
testified that the AT&T records showed the liable party as AT&T with a Georgia address
and the user as AT&T with a Morse Road, Columbus, Ohio address. However, as stated
above, B.B.'s testimony linked that phone number to appellant.
{¶ 13} Appellant agreed to the admission of the cell phone analysis without
objection initially but later asked the court to clarify for the jury that the phone was never
linked by the AT&T records to appellant. The judge gave that following clarifying
instruction to the jury:
Before we get to closing arguments there's just two sort of a
limiting instruction that I just want to state to you as you are,
again, considering closing arguments and ultimately
evaluating the evidence.
You saw testimony regarding the cellular phone. In the
evidence it is indicated suspect phone. Okay. Suspect phone
refers to the phone number which was received by [B.B.].
No. 15AP-1144 5
You also saw testimony regarding suspect home. Suspect
home refers to the home of the defendant and there's not that
the suspect home and suspect phone are connected, okay?
There's not testimony in the record in that regard.
(Tr. at 817-18.)
{¶ 14} Appellant testified and told a completely different story. He admitted to
being a drug dealer. He testified that on January 10, 2013, at around 8:00 p.m., which is
approximately six and one-half hours prior to the assault and robbery, he received a call
from a customer, a prostitute named Alex, who wanted to buy drugs. Alex asked him to
meet her at the Red Roof Inn on Brice Road in room 231. When he arrived and entered
the room, in addition to his customer Alex, there was B.B. and a man, neither of whom
appellant knew or had previously seen. Appellant stated that he was in the room for ten
minutes and smoked a cigarette that he extinguished in a soda cap, thereby explaining
how his DNA was on a cigarette in B.B.'s room. He claims that he sold Alex two Percocet,
crack, and then departed the room and did not return. Appellant testified that the 614-
441-2949 was not his phone and that he made no calls to B.B. He denied hitting, beating,
or robbing her.
{¶ 15} Appellant was found guilty of aggravated robbery with a firearm
specification (Count 1), robbery with a firearm specification (Count 2), felonious assault
with a firearm specification (Count 4), and having weapons while under disability (Count
5). The court merged Counts 1 and 2, and the state elected that appellant be sentenced on
Count 1. Appellant was sentenced to 17 years in prison to be served consecutively to his
sentences in three other cases. (Dec. 18, 2015 Jgmt. Entry.)
II. ASSIGNMENTS OF ERROR
{¶ 16} Appellant appeals, assigning the following errors:
[I.] The State failed to establish operability to support the
firearm specifications. Therefore, the convictions and
sentences for the firearm specifications violated Clifford L.
Young, Jr.'s rights to due process and a fair trial under the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 10 and 16 of the Ohio
Constitution.
[II.] The State failed to establish that a firearm was present or
operability to support the firearm specification(s) related to
the second altercation. Therefore, the convictions and
No. 15AP-1144 6
sentences for the specification(s) related to the second assault
violated Clifford L. Young, Jr.'s rights to due process and a fair
trial under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, and Article I, Sections 10 and
16 of the Ohio Constitution.
[III.] The trial court committed plain, reversible error when it
admitted unauthenticated cellphone records when that
testimonial evidence was key in placing Clifford L. Young, Jr.
at the scene of the crime, in violation of the Confrontation
Clause of the Sixth Amendment to the United States
Constitution.
[IV.] Clifford L. Young, Jr. was denied the effective assistance
of counsel at his trial, to which he was entitled under the Sixth
and Fourteenth Amendments to the United States
Constitution. Mr. Young's counsel failed to object to Det.
Howe's testimony about unauthenticated cellphone records.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.E.2d 177 (2004).
[V.] The State's repeated mischaracterization of the AT&T-
owned cellphone denied Clifford Young, Jr. a fair trial and due
process of law, in violation of the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, and Article I,
Sections 10 and 16 of the Ohio Constitution.
[VI.] The trial court committed plain error when it failed to
instruct the jury on photo-lineup noncompliance as required
by R.C. 2933.83(C)(3), in violation of Clifford L. Young, Jr.'s
Fifth, Sixth, and Fourteenth Amendment rights under the
United States Constitution, and Article I, Sections 10 and 16 of
the Ohio Constitution.
[VII.] Trial Counsel provided ineffective assistance of counsel
by failing to request an R.C. 2933.83(C)(3) jury instruction.
Sixth and Fourteenth Amendments, United States
Constitution, and Article I, Section 10 of the Ohio
Constitution.
III. ASSIGNMENTS OF ERROR ONE AND TWO
A. Sufficient evidence supports the firearm specifications
{¶ 17} In assignment of error one, appellant argues that the state failed to present
sufficient evidence to prove operability of the firearm to support the firearm
No. 15AP-1144 7
specifications. The issue of sufficiency of the evidence presents a purely legal question for
the court regarding the adequacy of the evidence. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). The Supreme Court has provided the following test for judging the sufficiency
of the evidence:
An appellate court's function when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine
the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The relevant
inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond
a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 18} A firearm specification may be proven without the actual presentation of
direct or scientific evidence that the firearm was operable. The Supreme Court has stated
that "it should be abundantly clear that where an individual brandishes a gun and
implicitly but not expressly threatens to discharge the firearm at the time of the offense,
the threat can be sufficient to satisfy the state's burden of proving that the firearm was
operable or capable of being readily rendered operable." Thompkins at 383-84.
{¶ 19} In State v. Pride, 10th Dist. No. 11AP-55, 2011-Ohio-6055, ¶ 19-20, this
court held that firearm operability could be inferred where the testimony established that
the suspect held a gun to a driver's head, hit him in the face with the gun, demanded the
driver exit the car, and looked like he was going to shoot the victims. See also, State v.
Dutton, 10th Dist. No. 09AP-365, 2009-Ohio-6120 (firearm operability inferred where
the record contained evidence that the defendant barged into a house, pointed a gun at
the victim, and then began to beat him with it).
{¶ 20} In the present action, B.B. testified that appellant pulled a gun out,
demanded money, and then repeatedly struck her with the gun in the head, shoulders and
upper body in furtherance of the aggravated robbery and felonious assault. (Nov. 12, 2015
Tr. at 292-95.) In addition, Detective Jackson testified that the blood splatter on the
mirror in the hotel room was consistent with someone being "pistol whipped." (Nov. 10,
2015 Tr. at 151.) As such, sufficient evidence exists to support the guilty verdicts as to the
firearm specifications. Appellant's first assignment of error is overruled.
No. 15AP-1144 8
B. No second assault
{¶ 21} In assignment of error two, appellant argues that the state failed to establish
that a firearm was present or operable in order to support the firearm specification(s)
related to the second altercation and, therefore, the convictions and sentences for the
specification(s) related to the second assault violated appellant's rights. The state did not
indict appellant for two assaults. Appellant was convicted of one count of felonious
assault. Therefore, there is no conviction that relates to a second assault to consider.
Appellant's second assignment of error is overruled.
IV. ASSIGNMENT OF ERROR THREE—Cellphone Records—No Plain Error
{¶ 22} Appellant argues that the trial court committed plain, reversible error when
it admitted unauthenticated cellphone records. Under Crim.R. 52(B), "plain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court." By its terms, the rule places three limitations on a reviewing
court's decision to correct an error despite the absence of a timely objection at trial. First,
there must be an error, i.e., a deviation from a legal rule. State v. Hill, 92 Ohio St.3d 191,
200 (2001). Second, the error must be plain, i.e., an error must be an "obvious" defect in
the trial proceedings. State v. Sanders, 92 Ohio St.3d 245, 257 (2001). Third, the error
must have affected substantial rights, i.e., the trial court's error must have affected the
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The Supreme Court has
acknowledged the discretionary aspect of Crim.R. 52(B) by admonishing courts to notice
plain error "with the utmost caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice." Id.{¶ 23} The Supreme Court has included unauthenticated cellphone records into
the category of testimonial statements that can violate Confrontation Clause rights. See
State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 2, 4. The Hood court held that
cellphone and other business-type records, "without * * * authentication, cannot be
considered nontestimonial." Id. at ¶ 2. In the case of cellphone records, when no
foundation is laid by a custodian of the records or any other qualified witness that the
records meet the requirements of Evid.R. 803(6), the records are testimonial, and "the
admission of the records in this case was constitutional error." Id. at ¶ 42. However, the
Hood court also found that the admission of cellphone records in that case was harmless
error. Id. at ¶ 50. Where constitutional error in the admission of evidence is extant, such
No. 15AP-1144 9
error is harmless beyond a reasonable doubt if the remaining evidence, standing alone,
constitutes overwhelming proof of the defendant's guilt. State v. Williams, 6 Ohio St.3d
281 (1983), paragraph six of the syllabus. See also, Hood at ¶ 43.
{¶ 24} First we note the state did not seek to introduce the AT&T records, but
rather the analysis prepared by Detective Howe, which was based on his expertise and the
records received from AT&T. As such, we construe appellant's third assignment of error as
challenging the admission of Detective Howe's "Cellular Review." (State's Ex. I.)
{¶ 25} Appellant never questioned the authenticity of the records. Defense counsel
had the AT&T records as part of discovery. The state had subpoenaed the AT&T keeper of
records. Defense counsel even subpoenaed an employee of AT&T. As this was the second
trial, counsel was well-familiar with the records and any issues they might present.
Appellant agreed to the admission of the cell phone analysis without objection initially but
later asked the court to clarify for the jury, which the trial court did, that the phone was
never linked by the AT&T records to appellant. (Tr. at 800-03.)
{¶ 26} Under the circumstances, we do not find plain error. There was no obvious
defect in the trial proceedings, nor do we find that the admission of State's Ex. I affected
the outcome of the trial, or caused a manifest miscarriage of justice. In addition, even if
we were to find error, such error would be harmless.
{¶ 27} Since the AT&T cellphone records never linked phone number 614-441-
2949 to appellant, it is unlikely that the jury relied on the testimony to convict, especially
in light of B.B.'s credible and consistent testimony regarding her activities, identifying her
assailant's phone number, identifying appellant in the photo lineup prior to her knowing
that his DNA was on the cigarette, identifying him in court, and that there was no
evidence of illegal drug use in the same hotel room in which appellant testified he had
sold multiple drugs, coupled with appellant's DNA on the cigarette that B.B. testified
burned her neck.
{¶ 28} This case came down to credibility. The jury believed B.B. The testimony of
one witness, if believed by the jury, is enough to support a conviction. State v. Strong,
10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42. As in Hood at ¶ 43 and 50, we conclude
that the admission of the cell phone records as incorporated into State's Ex. I did not
contribute to appellant's conviction and their admission was harmless beyond a
reasonable doubt. Appellant's third assignment of error is overruled.
No. 15AP-1144 10
V. ASSIGNMENT OF ERROR FIVE—No Prosecutorial Misconduct
{¶ 29} Appellant argues that the state's repeated mischaracterization of the AT&T-
owned cellphone, by repeatedly referring to the cellphone as the suspect phone, denied
appellant a fair trial and due process of law. Additionally, through an exhibit based on the
unauthenticated cellphone records, the state presented the "Cellular Review" that referred
to appellant's home address as "Suspect Home Address."
{¶ 30} Whether a prosecutor's remarks constitute misconduct depends upon (1)
whether the remarks were improper and, (2) if so, whether the remarks prejudicially
affected the accused's substantial rights. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-
5283, ¶ 163. The issue is whether the defendant received a fair trial. State v. Apanovitch,
33 Ohio St.3d 19, 24 (1987). The conduct of a prosecuting attorney during a trial cannot
be made a ground for error unless the conduct deprived the defendant of a fair trial. State
v. Maurer, 15 Ohio St.3d 239, 266 (1984).
{¶ 31} Appellant argues that the prosecutor mischaracterized the evidence by
calling the cellphone number that called B.B. the suspect phone. However, this
characterization was accurate as B.B. indicated that the person who used that cellphone
number was the person who attacked her, i.e., the appellant. The state readily admitted
throughout the trial, starting with opening statements, that the phone could not be
connected to appellant by the AT&T records. However, B.B.'s testimony linked the
cellphone to appellant.
{¶ 32} Appellant asked the court to clarify for the jury that the phone was never
linked to appellant by the AT&T records and that the word "suspect" in "phone" and
"home" did not link appellant. The judge so instructed the jury as stated above. The jury is
presumed to follow the court's instructions. State v. Loza, 71 Ohio St.3d 61, 75 (1994). As
such, the prosecutor's conduct was not prejudicial. Any claimed error did not affect the
outcome of the trial. Appellant's fifth assignment of error is overruled.
VI. ASSIGNMENT OF ERROR SIX—Photo Lineup—No Plain Error
{¶ 33} Appellant argues that the trial court committed plain error when it failed to
instruct the jury on photo-lineup noncompliance as required by R.C. 2933.83(C)(3).
Appellant did not request that the trial court instruct the jury pursuant to R.C.
2933.83(C)(3). Because appellant did not object to the jury instructions, he has waived all
but plain error.
No. 15AP-1144 11
{¶ 34} R.C. 2933.83(B) requires law enforcement agencies to adopt specific
procedures for conducting line-ups:
Prior to conducting any live lineup or photo lineup * * *, any
law enforcement agency or criminal justice entity in this state
that conducts live lineups or photo lineups shall adopt specific
procedures for conducting the lineups.
{¶ 35} The remedy for failure to comply with said procedures is a jury instruction:
[T]he "penalty" for failure to comply with R.C. 2933.83 is not
suppression, but that "the jury shall be instructed that it may
consider credible evidence of noncompliance in determining
the reliability of any eyewitness identification." R.C.
2933.83(C)(3).
State v. Stevenson, 2d Dist. No. 24821, 2012-Ohio-3396, ¶ 16. Noncompliance with R.C.
2933.83(B) alone is insufficient to warrant suppression of evidence. State v. Ruff, 1st
Dist. No. C-110250, 2012-Ohio-1910, ¶ 8. The failure to strictly comply with R.C. 2933.83
does not render the pretrial identification procedure per se impermissibly suggestive.
Rather, all facts and circumstances must be considered. See State v. Murphy, 91 Ohio
St.3d 516, 534 (2001).
{¶ 36} This court recently considered this very issue in a case directly on point,
State v. Lytle, 10th Dist. No. 15AP-748, 2016-Ohio-3532, discretionary appeal not
allowed, 147 Ohio St.3d 1474, 2016-Ohio-8438, and found no plain error:
Appellant contends that evidence of a failure to comply with
the provisions of R.C. 2933.83 was presented at trial in order
to trigger a jury instruction. Specifically, appellant points to
Bowman's and Kirby's testimonies as evidence that including
two photographs of the same person violated the Columbus
police lineup procedure. It is true that Bowman expressed his
own opinion that including two photographs of the same
person was a statutory violation. However, the minimum
statutory requirements and definition of photo array in R.C.
2933.83 do not address whether five distinct people must be
included in the array alongside the defendant. In addition,
testimony reflecting the officers' belief that the duplication
never should have occurred falls short of establishing a
procedure against photo duplication "adopted" by the
Columbus police department under R.C. 2933.83. R.C.
2933.83(C).
No. 15AP-1144 12
In other words, whether or not a violation of R.C. 2933.83
occurred is not obvious from record evidence. As such, we
cannot say any possible defect in not including a jury
instruction, pursuant to R.C. 2933.83(C)(3), rises to the level
of "plain" error within the meaning of Crim.R. 52(B). Barnes
at 28. See also Thompson at ¶ 24 (finding, in the context of a
court's failure to impose a jury instruction under R.C.
2933.83(C)(3), no plain error occurs where insufficient record
evidence demonstrates noncompliance with the statute).
We likewise cannot say that any possible error in not
including the R.C. 2933.83(C)(3) jury instruction affected the
outcome of the trial. The jury heard extensive testimony and
cross-examination regarding the photo array identifications
and the two photographs of the same person. The witnesses
testified that they did not know that two photographs of the
same person were placed in the photo array and that it did not
affect their selections of appellant in the photo array, and all
identified appellant in court as the person who robbed TK
Sports Bar. * * *.
Furthermore, the trial court gave the jury general instructions
regarding the value of identification testimony and credibility
of identification witnesses, which specifically asked the jury to
consider whether each identification witness had the
opportunity to make a reliable observation and specified that
the jury could take into account the strength of the
identification and the circumstances under which the
identification was made. Such a general credibility instruction
allows a jury to assess the value of photo identification
testimony. Thompson at ¶ 24 (finding no plain error occurred
in trial court's failure to give a R.C. 2933.83(C)(3) instruction
where jury received a general credibility instruction and heard
sufficient testimony regarding the identification); * * * .
Therefore, appellant's substantial rights were not affected,
and for all the above reasons, we find no plain error.
Id. at ¶ 76-79.
{¶ 37} Here, as in Lytle, there was no evidence of the failure to comply with any
procedure adopted by the Columbus police, or any evidence of failure to comply with any
section of R.C. 2933.83. As such, the trial court was not required to give a jury instruction
pursuant to R.C. 2933.83(C)(3). The jury was well aware of the issue with the photo array
and defense counsel extensively cross-examined B.B. and Detective Wood on this issue. In
addition, the trial court judge did give the general jury instruction regarding the value of
No. 15AP-1144 13
identification testimony and credibility of identification witnesses. (Nov. 18, 2015 Tr. at
920-22.) B.B. identified appellant in court and in the photo array. B.B. never commented
on the two photos, but focused on photos of two others, and did not notice that the same
person (not appellant) was featured twice. As such, any possible error did not affect the
outcome of the trial. We find no plain error. Appellant's sixth assignment of error is
overruled
VII. ASSIGNMENTS OF ERROR FOUR AND SEVEN—No Ineffective
Assistance of Counsel
{¶ 38} Appellant argues in the fourth assignment of error that he was denied the
effective assistance of counsel when counsel failed to object to Detective Howe's testimony
regarding unauthenticated cellphone records. Appellant argues in the seventh assignment
of error that trial counsel provided ineffective assistance of counsel by failing to request
an R.C. 2933.83(C)(3) jury instruction.
{¶ 39} Counsel is ineffective if counsel's performance is objectively unreasonable,
and if counsel's deficient performance substantially prejudices the defendant's trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the defendant must show
that counsel's deficient performance prejudiced the defense and deprived the defendant of
a fair trial. Id. at 687. A defendant establishes prejudice if "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694.
A. Assignment of error four
{¶ 40} As stated above, the state did not offer the testimony of an AT&T custodian
of records that could vouch for the business records accuracy or veracity. Instead, the
state offered the testimony of Detective Howe, who presented his "Cellular Review" based
in part on the AT&T records.
{¶ 41} We note that it is difficult to make an ineffective assistance claim in a direct
appeal because there is usually very little, if any, information in the record as to counsel's
reasoning. Trial counsel had the AT&T records as part of discovery. Appellant's counsel
had even subpoenaed an employee of AT&T. As this was the second trial, counsel was very
familiar with the records and any issues they might present. Counsel vigorously cross-
examined the experts at both trials. Had defense counsel objected to Detective Howe's
report based on AT&T's records, the state could have easily called the keeper of records
No. 15AP-1144 14
who had been subpoenaed. Counsel likely realized no purpose would be served by cross-
examining the records keeper and appellant does not suggest what testimony might have
been elicited to affect the outcome. Counsel was not ineffective. Appellant's assignment of
error four is overruled.
B. Assignment of error seven
{¶ 42} Appellant argues that R.C. 2933.83(C)(3) requires a jury instruction when
eyewitness identification procedures are violated and that because trial counsel was aware
of the lack of compliance, trial counsel should have requested an R.C. 2933.83(C)(3) jury
instruction.
{¶ 43} In order for the trial court to have been required to provide the jury
instruction, appellant first must show that there was evidence of a failure to comply with a
procedure that had been adopted by the Columbus police. Because there was no evidence
of the failure to comply with any procedure adopted by Columbus police, nor any evidence
of failure to comply with any section of R.C. 2933.83, the trial court was not required to
give a jury instruction pursuant to R.C. 2933.83(C)(3). Again, appellant cannot show that
the outcome of the trial would have been different had counsel requested said jury
instruction. As such, counsel was not ineffective. Appellant's seventh assignment of error
is overruled.
VIII. DISPOSITION
{¶ 44} Having overruled appellant's seven assignments of error, the judgment of
the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.
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