State v. Mims , 2014 Ohio 5338 ( 2014 )

[Cite as State v. Mims, 2014-Ohio-5338.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100520
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ULANDO D. MIMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-572465
BEFORE: Boyle, A.J., Rocco, J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: December 4, 2014
ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Radigan
Jennifer L. O’Malley
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} Defendant-appellant, Ulando Mims, appeals his convictions, raising the following
two assignments of error:
I. The trial court erred and abused its discretion in the admission of
irrelevant and highly prejudicial evidence, in violation of defendant’s right to due
process of law, as protected by the Fourteenth Amendment to the United States
Constitution.
II. The defendant was provided ineffective assistance of counsel, in
violation of his right to counsel, as protected by the Sixth Amendment to the
United States Constitution.
{¶2} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶3} In March 2013, the Cuyahoga County Grand Jury returned an 18- count
indictment against Mims for sexual offenses committed against three child relatives: T.J. (d.o.b.
July 8, 2003); C.B. (d.o.b. June 10, 1998); and A.J. (d.o.b. February 23, 2007). Specifically,
Mims was charged with nine counts of kidnapping, four counts of rape, four counts of attempted
rape, and one count of gross sexual imposition. All of the counts contained sexual predator
specifications, and the kidnapping counts carried sexual motivation specifications.
{¶4} Mims pleaded not guilty to the charges, elected to have the court try the sexual
predator and sexual motivation specifications, and the remaining charges proceeded to a jury
trial. Prior to the start of the jury trial, a hearing was held to determine whether A.J., who was
then six years old, was competent to testify. The court determined that she was competent to
testify.
I. Trial
{¶5} The state called 13 witnesses, including the alleged victims, and presented the
following evidence at trial.
{¶6} In November 1999, Mims married Felicia, who is the mother of T.J., the sister of
C.B., and the aunt of A.J. Mims and Felicia also have a nine-month- old child together.
Felicia’s siblings and mother have known Mims for years, even before he married Felicia.
According to Felicia’s mother, Brenda Bryce, she has known Mims since he was a child and
loved him like a son-in-law. By the witnesses’ accounts, Felicia’s siblings and mother had a
“good relationship” with Mims.
{¶7} Prior to the allegations of the sexual offenses arising, Felicia’s family socialized
often at the Mimses’ home. Felicia’s sister, Carey V., testified that she would regularly take her
daughter A.J. over to T.J.’s house to play, letting her spend the night there “maybe every other
weekend.” C.B., Felicia’s youngest sister, also regularly visited the Mimses’ home, hanging out
with T.J.
A. T.J. Reports Sexual Offenses and Receives Medical Treatment
{¶8} In March 2013, allegations of Mims committing sexual offenses against T.J.
surfaced. According to Felicia, T.J. told her that “my dad’s been touchin’ me in a nasty way.”
Felicia confronted Mims, who denied the allegations, and then Felicia called her mother, Brenda,
and her sister, Tina Davis. They immediately came over to Felicia’s house, and Brenda
ultimately took T.J. home with her to stay overnight.
{¶9} Tina took T.J., who was then nine years old, to the hospital the next day to be
examined. Nadine Thomas, a sexual assault nurse examiner (“SANE”), who examined T.J. on
March 7, 2013, read her narrative of the medical examination at trial, which indicated that Mims
had engaged in vaginal and anal intercourse with T.J. and possibly digital penetration.
Thomas’s narrative further indicated an incident of oral sex. Thomas also testified that T.J.
stated her stepfather bought a condom prior to the last incident of abuse, which was “the only
time he used a condom.” Thomas indicated that T.J. stated that the abuse began as a game of
hide and seek — T.J. would hide and if Mims found her, he would sexually abuse her. Thomas
testified that she did not find any physical trauma during the exam, but that is not uncommon.
{¶10} Based on a referral from Cuyahoga County Department of Children and Family
Services (“CCDCFS”), Dr. Mark Feingold examined T.J. on April 9, 2013. He read his
narrative of the Alpha Clinic examination, which corroborated the narrative provided to nurse
Thomas. T.J. reported the twisted game of hide and seek that was the genesis of the sexual
abuse. T.J. also described incidents of digital and vaginal penetration, anal intercourse, and oral
sex. T.J. also stated to Dr. Feingold that Mims purchased and used a condom during the last
incident, and that “white stuff” came out. T.J. further provided a detailed description of Mims’s
penis, including the fact that it would get “hard when he did it” and “would get short after a little
when he didn’t do it.” T.J. further informed Dr. Feingold that her aunt, C.B., had witnessed at
least one incident.
{¶11} According to Dr. Feingold’s narrative, T.J. had experienced some urinary
discomfort after the sexual abuse arose. While Dr. Feingold admitted that urinary discomfort
has other causes, he opined that it is unlikely a girl of T.J.’s age would know that it could follow
sexual activity.
B. A.J. Discloses Sexual Abuse and Receives Treatment
{¶12} Carey testified that, in March 2013, her sister Tina called to notify her of the
allegations that T.J. reported against Mims, warning her to speak with her daughter, A.J., who
regularly spent a lot of time at the Mimses’ house. Carey immediately asked A.J. “if anyone was
touching her inappropriately.” A.J. responded, “Uncle UU,” which is how A.J. referred to
Mims. Carey testified that she was “shocked” and telephoned the police, who ultimately drove
them to Fairview Hospital for A.J. to be examined.
{¶13} Carey further testified that, at the time of speaking with A.J., she only knew of the
allegations relating to T.J.; she was unaware of any allegations involving her younger sister, C.B.
{¶14} At Fairview Hospital, SANE Patrica McKee examined A.J. and testified that A.J.
told her that she was sleeping at the Mimses’ house when her uncle told her to go into the
bedroom. A.J. told McKee her clothes were still on, but her uncle was naked, got on top of her,
and put “his penis down here.” McKee testified that A.J. was pointing to the genital area
between her legs. McKee further testified that she saw no signs of physical trauma, but that
would be consistent with what A.J. told her.
C. A.J.’s Testimony
{¶15} At trial, A.J., who was then six years old, testified that Mims has touched her in
places “that people aren’t supposed to touch.” She explained that it happened at his house
while her cousin, T.J., was there. A.J. testified that, while T.J. was asleep on the couch, she was
watching TV when Mims told her to come into the bedroom. According to A.J., Mims pulled
down his pants and tried to stick his penis into her mouth. He also tried to touch her private
with his private but her underwear remained on during the incident. A.J. testified that she told
Mims to stop and that he eventually stopped. According to A.J., Mims also told her to keep the
incident a secret, but she did not. A.J. admitted, however, that she was too scared to tell her
mom while it was happening.
D. C.B. Discloses Sexual Abuse
{¶16} Brenda testified that her daughter, C.B., used to go over to Felicia’s house every
weekend and would sometimes go over there during the week. Brenda testified that, in January
2013, she started noticing a change in the interaction between T.J. and C.B. According to
Brenda, “both started becoming very withdrawn, and then C.B. started not wanting to go to
Felicia’s.”
{¶17} In March 2013, after Felicia, Brenda, and Tina became aware of T.J.’s allegations
against Mims, Tina questioned C.B., who started crying. Brenda testified that Tina took C.B.
and T.J. to the hospital the next day while Felicia was at work. C.B., A.J., and T.J. were all
interviewed by Shannon Sneed, a social worker with CCDCFS. Sneed testified that all three
children provided details of the incidents. Sneed referred all three girls to the Guidestone
Abuse Program for counseling, and referred A.J. and T.J. to the Alpha Clinic to be examined and
interviewed again.
E. C.B.’s Testimony
{¶18} At trial, C.B., who was then 15 years old, testified that she has a good relationship
with her siblings and that she is friends with her niece, T.J. According to C.B., she used to see
T.J. almost every day but not as often now.
{¶19} C.B. testified that on one occasion while hanging out with T.J. in February 2012,
she saw Mims unbuckle his pants and put his penis in T.J.’s mouth for “like 30 seconds.” C.B.
further testified that afterwards Mims told her not to say anything. Additionally, C.B. testified
that during a later incident, Mims pinned her body down with his knees and rubbed his body
against hers. She testified that she could not get off the bed because he was on top of her.
C.B. further testified that on other occasions Mims would try to grab her buttocks and try to rub
her thigh, but she would move his hand, and that nothing else happened.
{¶20} C.B. further testified that her sisters Felicia and Bobbie Jo Bennett told her to say
none of the incidents happened. C.B. also indicated that she did not tell T.J. to make this story
up about Mims. C.B. testified that she had a “pretty good relationship” with Mims.
F. T.J. Recants Allegations at Trial
{¶21} One week prior to the commencement of Mims’s trial, Felicia notified Mims’s
defense counsel and informed him that T.J. had changed her story.
{¶22} At trial, T.J., who was then 10 years old, testified that she and C.B. made up the
story about Mims. According to T.J., C.B. did not like Mims and the two of them fabricated the
story to get Mims out of the house. T.J. testified that she did not remember speaking with a
social worker or hospital workers regarding the last incident of abuse. T.J. indicated that she
did not know what a condom was and did not remember saying that Mims purchased a condom
or used a condom during the last incident.
{¶23} According to T.J., C.B. was the mastermind behind the entire plan, and C.B. told
her what to say. T.J. stated that, although she never saw Mims’s penis, she was able to tell her
mom about it. T.J. testified that C.B. “watch, like, porno and stuff, and that’s how, like, she
found all this stuff out.” Although T.J. was unsure whether C.B. had ever seen Mims’s penis
before, she testified that C.B. told her how to describe it.
{¶24} T.J. further testified that she and C.B. were the only parties to the plan of
fabricating the allegations.
{¶25} T.J. also testified that she is not that close to C.B. because “she’s too grown for me
— ‘cause she talks about boys, she puts me on Instagram and FB, and puts on makeup.”
G. Felicia’s Testimony and Tape-Recorded Jailhouse Calls
{¶26} The state called Felicia as a court’s witness, who acknowledged that the state had
to issue an arrest warrant for her to appear in court.
{¶27} Felicia testified that she did not call the police upon hearing T.J.’s allegations
because she was “confused” and believed that T.J. needed to be examined by a doctor first.
Felicia confirmed that she told Mims to leave the house upon hearing the allegations but later
allowed him to return that same night. Felicia testified that, following Mims’s arrest, she
received possibly threatening messages on her Facebook page and some of Mims’s relatives
visited her at work. Although Felicia admitted that she filed a police report against them, she
testified that she did so only upon her mother’s insistence.
{¶28} Felicia further admitted to telling Mims the specific details of T.J.’s allegations
after he was arrested but indicated that it was not right away.
{¶29} The state offered recorded jailhouse phone calls between Felicia and Mims that
took place shortly after Mims was arrested. In the recording, Felicia is heard telling Mims what
T.J. reported and stating that there are “too many details.” Mims asked Felicia to get them to
say they were lying and repeatedly urged Felicia to talk to her daughter, emphasizing that he
could not come home unless she changed her story. During the call, Felicia indicated that she
had talked to T.J. and that T.J. was not changing her story. Felicia later stated in the recording
that she informed T.J. how much time Mims could get but she was still insisting that this
happened. At one point, Mims told Felicia to talk to T.J. when no one was around — “without
no one listening.” Mims further directed Felicia to tell T.J. that “I’m sorry.”
{¶30} Felicia testified that she never told T.J. to change her story. According to Felicia,
T.J.’s story only changed after she had a falling out with C.B.
{¶31} Upon questioning from defense counsel, Felicia testified that Mims was
responsible for prohibiting C.B. from coming over to their house, which upset C.B. Felicia also
testified that she did not like T.J. hanging out with C.B. because of their age difference and
because C.B. was “more into boys.”
H. Evidence of Mims Using “K2” and Testimony Describing “K2” as a
Narcotic
{¶32} At trial, the state also elicited testimony from some of the witnesses as to Mims
using “K2” — a synthetic marijuana. Specifically, the state first asked C.B. on redirect if
anything different had happened at the time that the sexual abuse arose. C.B. responded that
Mims’s attitude had changed and attributed his smoking K2 as causing the change in his attitude.
{¶33} During Felicia’s testimony, the state played another recorded jailhouse call wherein
Felicia mentions K2 and states that she told a detective that her husband did not do anything until
after he started smoking K2, which should warrant a drug treatment program instead of jail time.
Felicia further testified at trial that she too smoked K2 in the house with Mims and that “K2
gives you the same feeling that you get with marijuana.” Felicia described K2 as “legalized
weed.” The state asked Brenda about Mims smoking K2, and she testified that he was
“forgetful and goofy.” The state also asked Bobbie Jo on cross-examination as to her
knowledge of Mims smoking K2, which she indicated that he had, along with herself and her
husband.
{¶34} Over defense counsel’s objection, the state further offered Captain Brian Heffernan
of the Cleveland Police Department’s narcotics unit to testify as to his knowledge of K2.
Specifically, Captain Heffernan testified that in 2010, the Cleveland narcotics unit became aware
of K2 — a brand name for a synthetic cannabinoid that was first identified in the mid-to-late 90s.
Captain Heffernan testified that he was aware of two complaints concerning K2: (1) the
substance was being sold to underage kids, and (2) people were hospitalized with psychiatric
episodes after using it. Captain Heffernan further testified that until October 2011, the drug was
legal and sold in packages labeled “not for human consumption.”
{¶35} Upon resting its case, the state voluntarily dismissed one count of rape, one count
of attempted rape, and six counts of kidnapping.
II. Defense Witnesses
{¶36} Mims offered three witnesses on his behalf: Bobbie Jo Bennett, Felicia’s sister;
Charles Bennett (“Chuck”), Felicia’s brother-in-law (married to Bobbie Jo); and E.D., Felicia’s
15-year-old nephew. These witnesses testified as to spending considerable amount of time at
the Mimses’ house and never observing Mims touching T.J. inappropriately.
{¶37} According to Bobbie Jo, she and her two young children and husband spent
everyday at Mims’s house from 2011-2012, and often spent the night. Bobbie Jo testified that
“[C.B.] was hardly there,” and A.J. was never there during her visits. According to Chuck, he
and his family were at the Mimses’ house “like everyday” in 2011 and 2012. He testified that
A.J. never spent the night but C.B. occasionally did. Similarly, E.D. testified that he stayed at
the Mimses’ house six days a week in 2012, sleeping on the couch. According to E.D., C.B.
stayed one night on the weekends. E.D. further testified that he slept over at the house with
Mims, Felicia, and T.J., indicating that those were the only people sleeping there.
III. Verdict and Sentence
{¶38} The jury found Mims guilty on all the remaining counts of the indictment. The
court found Mims guilty of the sexual motivation specifications but not guilty of the sexually
violent predator specifications. The trial court subsequently sentenced Mims to a total term of
life imprisonment with parole eligibility after 35 years.
Admission of “K2” Evidence
{¶39} In his first assignment of error, Mims argues that the state improperly introduced
other acts evidence throughout the trial that he smoked K2, which was erroneously admitted into
evidence to show his propensity to commit crime, in violation of Evid.R. 404(B). Mims
contends that his use of K2 was the focal point of the trial to support the state’s theory that his
“use of K2 was the reason he began molesting his stepdaughter and other children.” According
to Mims, the evidence of his K2 use was irrelevant and highly prejudicial.
{¶40} Evid.R. 404(B) provides that “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” The list of
acceptable reasons for admitting testimony of prior bad acts into evidence, however, is
non-exhaustive. State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 56.
{¶41} In determining whether to permit other-acts evidence to be admitted, trial courts
should conduct the three-step analysis set forth in State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, 983 N.E.2d 1278: (1) determine if the other-acts evidence “is relevant to
making any fact that is of consequence to the determination of the action more or less probable
than it would be without the evidence” under Evid.R. 401; (2) determine if the other-acts
evidence “is presented to prove the character of the accused in order to show activity in
conformity therewith or whether the other-acts evidence is presented for a legitimate purpose,
such as those stated in Evid.R. 404(B)”; and (3) consider “whether the probative value of the
other-acts evidence is substantially outweighed by the danger of unfair prejudice.” Id. at ¶ 20.
{¶42} With the exception of Captain Heffernan’s testimony, the defense did not object to
the K2 testimony that Mims challenges now on appeal. Mims therefore has waived all but plain
error.
{¶43} “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Crim.R. 52(B)
places the following three limitations on a reviewing court’s decision to correct an error despite
the absence of a timely objection at trial: (1) there must be error; (2) the error must be an
“obvious” defect in the trial proceedings; and (3) the error must have affected “substantial
rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. The Ohio
Supreme Court has interpreted the third limitation of the rule “to mean that the trial court’s error
must have affected the outcome of the trial.” Id. In other words, plain error requires that “but
for the error, the outcome of the trial would clearly have been otherwise.” State v. Biros, 78
Ohio St.3d 426, 431, 678 N.E.2d 891 (1997).
{¶44} According to the state, evidence of Mims smoking K2 was not impermissible
other-acts evidence, but relevant background information. Specifically, the state argues that
“[t]he evidence of [Mims’s] drug use corresponds to his demeanor before and during the times
the criminal acts occurred as well as his plan to avoid prosecution as a whole.”
{¶45} The record reveals that the first mention of Mims’s use of K2 came up during the
state’s redirect of C.B., following defense counsel’s questioning of C.B.’s recollection of the
timing of Mims first committing any sexual offenses. Specifically, the prosecutor asked C.B. the
following during redirect:
Q. [Prosecutor]: [C.B.], [defense counsel] spent a lot of time asking you if anything
happened before this day in February of 2012. Right?
A. [C.B.]: Mm-hmm.
Q. [Prosecutor]: And, you said no, right?
A. [C.B.]: Mm-hmm.
Q. [Prosecutor:] Was there anything different that had happened prior to 2012
when this started and then what happened after 2012 after this first time?
A. [C.B.:] What do you mean? Like —
Q. [Prosecutor:] Did anything change with Mr. Mims?
A. [C.B.:] Like, yeah, like his attitude and stuff, like — mm-hmm.
Q. [Prosecutor:] Okay. Did you know whether or not he was doing anything
that changed that attitude?
A. [C.B.] Yeah, he was smokin’.
Q. [Prosecutor:] What was he smoking?
A. [C.B.] K2.
{¶46} Immediately following C.B.’s answer, defense counsel objected but then withdrew
the objection following a sidebar conference.
{¶47} Contrary to Mims’s assertion, we do not find that the state offered this testimony to
show that Mims had a propensity for committing a crime in violation of Evid.R. 404(B).
Although we do not find the state’s asserted grounds on appeal for supporting the introduction of
this evidence to be compelling, we nonetheless find that the evidence was properly admitted.
{¶48} Our reading of the transcript reveals that the defense opened the door to C.B.’s
testimony after the defense extensively questioned her credibility as to the timing of when she
first observed Mims committing the sexual offenses. C.B.’s testimony reveals her association
with Mims first engaging in this inappropriate conduct around the same time that he started
smoking K2. This testimony therefore is relevant to the circumstances surrounding the abuse in
C.B.’s mind and her credibility as to specifically remembering when it arose.
{¶49} Further, once the evidence was properly admitted through C.B.’s testimony, we
find no abuse of discretion in the trial court allowing other witnesses to testify as to their
knowledge of Mims smoking K2 because such testimony served only to corroborate C.B.’s
testimony and bolster her credibility. See generally State v. Culp, 9th Dist. Summit No. 26188,
2012-Ohio-5395, ¶ 30 (recognizing that evidence corroborating victim’s testimony is relevant to
the victim’s credibility).
{¶50} This evidence therefore satisfies the first two prongs of the Williams test as being
both relevant and offered for an acceptable reason other than showing that Mims acted in
conformity with his prior bad act.
{¶51} We likewise find no basis to conclude that the probative value of this evidence is
substantially outweighed by the danger of unfair prejudice. Having found that this evidence
was relevant, we find no merit to Mims’s claim that the evidence had no probative value and
therefore presumably prejudicial. Moreover, we do not find Mims’s prior use of K2 — a
substance that was legal up until 2011 — to be so inflammatory to bias the jury to conclude that
Mims’s drug use proved an inclination to commit sexual offenses. This is a leap that no
reasonable juror would take.
{¶52} But regardless, even if we agreed that the admission of the evidence was error, we
find no plain error in this case. We find that the outcome of the case would have been the same
even in the absence of repeated testimony concerning Mims’s use of K2.
{¶53} Here, the three victims separately disclosed Mims committing sexual offenses
against them. While Mims tries to argue that C.B. plotted to fabricate the allegations, this
theory is belied by T.J.’s admission that A.J. was never a part of the plan. Despite not being
aware of the “plan,” A.J. unequivocally and consistently identified “Uncle UU” as touching her
inappropriately. Further, the evidence revealed that A.J. had no motive to lie.
{¶54} Although T.J. recanted at trial, her testimony was rife with inconsistencies and
contradictions. For example, T.J. described Mims’s penis in detail to Dr. Feingold, but at the
trial she stated that she had never seen Mims’s penis. While initially unresponsive to the
prosecutor’s question as to how she was able to describe previously Mims’s penis, T.J. ultimately
stated that C.B. told her how to describe it, but acknowledged that she did not know if C.B. had
seen it. Further, both Dr. Feingold and the SANE Thomas testified that T.J. volunteered that
Mims had purchased and used a condom during the last incident of sexual abuse. T.J.,
however, testified at trial that she did not know what a condom was nor did she have any
recollection of stating anything about a condom.
{¶55} Further, the state presented circumstantial evidence that T.J. was pressured to
change her story at trial. Specifically, the tape-recorded jailhouse calls revealed that Mims was
pressuring Felicia to talk to her daughter so that he could come home. Notably, during the calls,
Mims repeatedly pressures Felicia to talk to T.J. in order to get the charges dropped. Based on
the timing of T.J. recanting — one week prior to trial — and the evidence of Mims pressuring
Felicia to get T.J. to say none of it happened, the jury reasonably disregarded T.J.’s testimony at
trial.
{¶56} Conversely, T.J.’s statements prior to trial consistently identified Mims as the
perpetrator and consistently reported with detail the sexual offenses. As noted by Dr. Feingold,
T.J., who was only nine years old at the time of reporting the offenses, testified as to urinary
discomfort after the sexual abuse arose — a fact that a girl of T.J.’s age would not likely know.
Notably, even Felicia noted in her conversation to Mims that T.J. was insisting that this
happened.
{¶57} Finally, the statements of the three victims, coupled with the recorded jailhouse
calls, convinces us that the jury would have undoubtedly convicted Mims. In the calls, Mims
consistently urges Felicia to get T.J. to change her story so that he can come home. He goes as
far to tell Felicia to get T.J. alone to talk to her with “no one listening.” Notably, Mims even
implicates himself by directing Felicia to tell T.J. that he is sorry.
{¶58} Accordingly, based on this evidence, we find that the outcome of the trial would
have been the same even if the evidence of Mims’s K2 use had not been admitted.
{¶59} As for Captain Heffernan’s testimony — the sole evidence that Mims objected to
— we find no basis to conclude that his testimony violated Evid.R. 404(B). Captain Heffernan
testified as to his general knowledge of K2 and offered no testimony specific to any bad acts
committed by Mims. Indeed, the trial court specifically limited Heffernan’s testimony to not
include any opinion pertaining to Mims. Thus, Captain Heffernan’s testimony does not
constitute improper “other acts” testimony contemplated and prohibited under Evid.R. 404(B).
See State v. Persohn, 7th Dist. Columbiana No. 11CO37, 2012-Ohio-6091 (recognizing that the
detective’s general testimony regarding confidential informant did not constitute other acts
testimony prohibited under Evid.R. 404(B) because defendant’s alleged bad acts were not even
discussed during detective’s testimony).
{¶60} To the extent that Mims challenges the general admissibility of Captain
Heffernan’s testimony under Evid.R. 401 or 403, we find that if the trial court committed any
error, such error was harmless. An error is harmless if it does not affect a substantial right of an
accused. Crim.R. 52(A). Disregarding Captain Heffernan’s testimony, we find that the record
contains overwhelming evidence to support the convictions. See State v. Davis, 44 Ohio
App.2d 335, 338, 338 N.E.2d 793 (8th Dist.1974) (harmless error if after reading the entire
record and disregarding the objectionable evidence, overwhelming evidence of defendant’s guilt
remains). We simply do not agree that Captain Heffernan’s testimony improperly contributed
to his conviction. Accordingly, we find that the error complained of was harmless beyond a
reasonable doubt and did not deprive Mims of his constitutional right to a fair trial.
{¶61} The first assignment of error is overruled.
Ineffective Assistance of Counsel
{¶62} In his second assignment of error, Mims argues that he was provided ineffective
assistance of counsel, in violation of his Sixth Amendment right to counsel. He claims that his
trial counsel was deficient by failing to object to the repeated submission of the evidence of
Mims’s K2 drug use and that such failure prejudiced him. We disagree.
{¶63} To establish ineffective assistance of counsel, a defendant must show (1) deficient
performance by counsel, i.e., performance falling below an objective standard of reasonable
representation, and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the
proceeding’s result would have been different. Strickland v. Washington, 466 U.S. 668,
687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraphs two and three of the syllabus.
{¶64} Even if we agreed that defense counsel should have objected to any reference of
Mims’s K2 use, and assuming that the trial court should have prohibited any mention of K2, we
nonetheless find no prejudice in this case. Contrary to Mims’s assertion, his convictions do not
arise from the evidence of him having smoked K2; the convictions are a result of the victims’
testimony of the abuse and his own statements recorded in the jailhouse calls. We find no
reasonable probability that but for counsel’s errors, the proceeding’s result would have been
different.
{¶65} The second assignment of error is overruled.
{¶66} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR