State v. Lane , 2022 Ohio 3775 ( 2022 )

[Cite as State v. Lane, 2022-Ohio-3775.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-21-33
v.
DAYSHA N. LANE, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2019 0399
Judgment Affirmed
Date of Decision: October 24, 2022
APPEARANCES:
Gregory Scott Robey for Appellant
Jana E. Emerick for Appellee
Case No. 1-21-33
MILLER, J.
{¶1} Defendant-appellant, Daysha N. Lane, appeals the August 5, 2021
judgment of sentence of the Allen County Court of Common Pleas. For the reasons
that follow, we affirm.
{¶2} On November 14, 2019, the Allen County Grand Jury indicted Lane on
two counts: Count One of possession of cocaine in violation of R.C. 2925.11(A),
(C)(4)(e), a first-degree felony, and Count Two of possession of heroin in violation
of R.C. 2925.11(A), (C)(6)(b), a fourth-degree felony. Each count also contained a
firearm specification pursuant to R.C. 2941.141(A), a specification for forfeiture of
a gun in a drug case pursuant to R.C. 2941.1417(A), and a specification for forfeiture
of money in a drug case in violation of R.C. 2941.1417(A). Lane appeared for
arraignment on November 22, 2019 and pleaded not guilty to the counts and
specifications in the indictment. The trial court also appointed Lane trial counsel.
{¶3} A jury trial was held on June 7-8, 2021. On June 8, 2021, the jury found
Lane guilty as charged in the indictment.
{¶4} Lane’s sentencing hearing was held on July 21, 2021. At the hearing,
the trial court determined that Count One, possession of cocaine, and Count Two,
possession of heroin, did not merge for sentencing. However, the trial court found
that the firearm specifications merged, and the State elected to have the trial court
sentence Lane on the firearm specification associated with Count One. Thereafter,
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the trial court sentenced Lane to a mandatory term of six years in prison for Count
and an additional one-year-mandatory prison term for the firearm specification
associated with that charge. With respect to Count Two, the trial court sentenced
Lane to a nonmandatory term of 12 months. The trial court ordered the sentence for
Count Two to be served concurrently to the sentence for Count One making for an
aggregate prison term of 7 to 10 years. The trial court filed its judgment entry of
sentence on the August 5, 2021.
{¶5} On August 11, 2021, Lane filed her notice of appeal. She raises nine
assignments of error. For ease of discussion, we will address several of her
assignments of error together and out of order.
Assignment of Error No. I
The State failed to present sufficient evidence to support criminal
convictions of Appellant, resulting in substantive and procedural
due process violations.
Assignment of Error No. II
The convictions of Appellant are against the manifest weight of
the evidence presented, and said convictions must be vacated.
Assignment of Error No. IV
The trial court erred when it denied Appellant’s Rule 29 Motion,
with regard to Counts One, and the firearm specifications.
{¶6} We elect to address Lane’s first, second, and fourth assignments of error
together as they concern related issues. In Lane’s first assignment of error, she
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argues her convictions for each count and the related firearm specifications are not
supported by sufficient evidence. Specifically, in her first assignment of error, Lane
contends that the State did not present sufficient evidence that she possessed the
firearms and drugs giving rise to the offenses. In her second assignment of error,
Lane argues that her convictions are against the manifest weight of the evidence. In
her fourth assignment of error, Lane alleges that the trial court erred by denying her
Crim.R. 29 motion with respect to Count One and the firearm specifications.
Standards for Sufficiency-of-the-Evidence
and Manifest-Weight Review
{¶7} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). Accordingly, we address each legal concept individually.
{¶8} “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.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he 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.” Id. “In
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deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33.
{¶9} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weight[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
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Lane’s Offenses
{¶10} We first review the sufficiency of the evidence supporting Lane’s
convictions. Lane was found guilty of possession of cocaine and possession of
heroin in violation of R.C. 2925.11(A), (C)(4)(e) and R.C. 2925.11(A), (C)(6)(b),
respectively. Lane was also found guilty of the firearm specifications associated
with both counts.
{¶11} Possession of drugs under R.C. 2925.11(A) provides, “No person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.”
{¶12} The firearm specification attached to each of the possession offenses
pursuant to R.C. 2941.141(A) requires that “the offender had a firearm on or about
the offender’s person or under the offender’s control while committing the offense.”
R.C. 2941.141(A).
{¶13} On appeal, Lane argues only that there is insufficient evidence that she
possessed the drugs and firearm. Because possession is the only element Lane
challenges on appeal, our review will be limited to determining whether sufficient
evidence was presented that Lane possessed the cocaine, heroin, and firearm.
Compare State v. Watts, 3d Dist. Hancock No. 5-12-34, 2016-Ohio-257, ¶ 43.
{¶14} “‘Possess’ or ‘possession’ means having control over a thing or
substance, but may not be inferred solely from mere access to the thing or substance
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through ownership or occupation of the premises upon which the thing or substance
is found.” R.C. 2925.01(K). “The issue of whether a person charged with drug
possession knowingly possessed a controlled substance ‘is to be determined from
all the attendant facts and circumstances available.’” State v. Brooks, 3d Dist.
Hancock No. 5-11-11, 2012-Ohio-5235, ¶ 45, quoting State v. Teamer, 82 Ohio
St.3d 490, 492 (1998).
{¶15} “Possession of drugs can be either actual or constructive.” State v.
Bustamante, 3d Dist. Seneca Nos. 13-12-26 and 13-13-04, 2013-Ohio-4975, ¶ 25,
citing State v. Cooper, 3d Dist. Marion No. 9-06-49, 2007-Ohio-4937, ¶ 25, citing
State v. Wolery, 46 Ohio St.2d 316, 329 (1976) and State v. Haynes, 25 Ohio St.2d
264 (1971). “‘A person has ‘constructive possession’ if he is able to exercise
dominion and control over an item, even if the individual does not have immediate
physical possession of it.” Id., citing State v. Hankerson, 70 Ohio St.2d 87 (1982),
syllabus and Wolery at 329. “For constructive possession to exist, ‘[i]t must also be
shown that the person was conscious of the presence of the object.’” Id., quoting
Hankerson at 91. “Finally, the State may prove the existence of the various elements
of constructive possession of contraband by circumstantial evidence alone.” Id.,citing State v. Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-3411, ¶ 51. See
also Jenks, 61 Ohio St.3d at 272-273. “Absent a defendant’s admission, the
surrounding facts and circumstances, including the defendant’s actions, are
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evidence that the trier of fact can consider in determining whether the defendant had
constructive possession.” State v. Voll, 3d Dist. Union No. 14-12-04, 2012-Ohio-
3900, ¶ 19, citing State v. Norman, 10th Dist. Franklin No. 03AP-298, 2003-Ohio-
7038, ¶ 31 and State v. Baker, 10th Dist. Franklin No. 02AP-627, 2003-Ohio-633,
¶ 23. “Although a defendant’s mere proximity to drugs is in itself insufficient to
establish constructive possession, proximity to the drugs may constitute some
evidence of constructive possession.” State v. Brown, 4th Dist. Athens No. 09CA3,
2009-Ohio-5390, ¶ 20, citing State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-
Ohio-5747, ¶ 40. “Therefore, presence in the vicinity of contraband, coupled with
another factor or factors probative of dominion or control over the contraband, may
establish constructive possession.” Id., citing State v. Riggs, 4th Dist. Washington
No. 98CA39, 1999 WL 727952, *5 (Sept. 13, 1999).
Sufficiency of the Evidence & Crim.R. 29
{¶16} Lane’s arguments challenging the sufficiency of the evidence of her
convictions are predicated upon the argument that the cocaine, heroin, and firearm
were not in her possession. Reviewing the evidence in a light most favorable to the
State, we conclude the jury could have rationally inferred beyond a reasonable doubt
Lane’s constructive possession of the cocaine, the heroin, and a firearm.
{¶17} At trial, the State presented evidence that members of the West Central
Ohio Crime Task Force executed a controlled buy at 949 Leland Avenue, Lima,
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Ohio on October 2, 2019. The target of the controlled buy was Deontray Forrest.
Based on the evidence obtained during the controlled buy, law enforcement
obtained a search warrant for the residence, which was executed that same day.
{¶18} When law enforcement officers executed the search warrant, the only
individuals present at 949 Leland Avenue were Lane, her minor child, and her two
juvenile siblings. (June 7-8, 2021 Tr. at 187). When inquired by Investigator Dena
Lauck, Lane provided Investigator Lauck with her personal information and stated
that she and her young child were the sole residents of 949 Leland Avenue. (Id. at
187-188). Lane also informed Investigator Lauck that she was pregnant with
Forrest’s child. (Id. at 188).
{¶19} When Investigator Lauck entered the house, she observed suspected
narcotics on the kitchen counter, which was located near the entrance to the
residence. (Id. at 188-189); (State’s Exs. 8, 9, 37, 38). Forensic testing identified
the suspected narcotics as heroin and cocaine. (State’s Ex. 72); (June 7-8, 2021 Tr.
at 426-428). Law enforcement officers also located $90 cash on Lane’s person, $29
cash in the console of a car registered in Lane’s name, and $22 cash in a wallet
found in the vehicle. (State’s Exs. 11-14); (June 7-8, 2021 Tr. at 196-198).
{¶20} In addition, investigators located a much larger quantity of suspected
drugs, as well as drug paraphernalia, in an end table in the living room area of Lane’s
residence. (State’s Exs. 15, 16, 19, 61, 62, 63, 64); (June 7-8, 2021 Tr. at 386-387).
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The drugs were contained inside a red children’s Easter basket, which investigators
believed belonged to Lane’s child. (State’s Exs. 61, 62, 63); (June 7-8, 2021 Tr. at
386-387). Also located in the basket with the drugs were nail polish and nail care
products. (State’s Ex. 63); (June 7-8, 2021 Tr. at 370-373). The end table was not
locked and was accessible to any person in the house. (June 7-8, 2021 Tr. at 389).
Forensic examination of the suspected drugs identified the substance as
approximately 80 grams of cocaine. (State’s Ex. 72); (June 7-8, 2021 Tr. at 426-
428, 436). Sergeant Michael A Hanes, Jr., a member of the West Central Ohio
Crime Task Force, testified this quantity of cocaine was more consistent with
quantities of cocaine at the trafficking level rather than a “user level.” (June 7-8,
2021 Tr. at 389-390).
{¶21} Law enforcement’s search of the property also uncovered $5,000.00
cash located inside a bag on the top of the refrigerator. (State’s Exs. 14, 53, 54, 55,
56); (June 7-8, 2021 Tr. at 376-382). The currency was secured into five bundles
each containing $1,000.00. (June 7-8, 2021 Tr. at 358-359, 381-382); (State’s Exs.
14, 56). Furthermore, law enforcement officers identified several of the bills located
in the $5,000.00 bundle as matching money used during the controlled buy executed
at the residence earlier in the day. (June 7-8, 2021 Tr. at 217-218); (State’s Exs.
21.4, 22).
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{¶22} Law enforcement officers also located a functional firearm with a live
round of ammunition inside the chamber. (State’s Exs. 17, 57, 58); (June 7-8, 2021
Tr. at 200-202, 359-360). The firearm was located between the mattresses in a
bedroom just off the living room area, where the end table with the large amount of
cocaine was located. (June 7-8, 2021 Tr. at 291, 391-392); (State’s Exs. 17, 35, 57).
According to Sergeant Hanes, in his experience, it is common for investigators to
uncover firearms in between mattresses, and it is also common to locate firearms
and drugs in close proximity to one another because drug traffickers often use the
firearms to protect their drug business or the proceeds thereof. (June 7-8, 2021 Tr.
at 393, 395).
{¶23} Investigator Lauck conceded that the search warrant listed Forrest as
the target of the investigation at 949 Leland Avenue. (Id. at 305-306). However, in
her experience, investigating one suspect often leads law enforcement to other
targets. (Id. at 338). According to Investigator Lauck, although Forrest was initially
the target of the investigation, the investigation into Forrest uncovered evidence that
Lane was part of Forrest’s drug-dealing circle. (Id. at 338-339).
{¶24} The State also introduced text message communications between Lane
and an individual identified as “Yazzzzieee Yazzz” and text message
communications between Lane and Forrest. (State’s Exs. 4, 5). In State’s Exhibit
4, an extraction report of text messages between Lane and “Yazzzzieee Yazzz,” the
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two repeatedly communicate about selling drugs and make multiple references to
drug users arriving at Lane’s residence to purchase drugs. (State’s Ex. 4).
Throughout the conversation, the pair recurrently use drug slang to discuss the drugs
that they are selling to drug users and the proceeds that they receive in exchange.
(Id.). At one point in the conversation, Lane refers to herself as a “real live trap
queen” which Investigator Lauck translated to mean the “queen of * * * selling
drugs.” (Id.); (June 7-8, 2021 Tr. at 238-239).
{¶25} In State’s Exhibit 5, an extraction report of the text messages between
Lane and Forrest, the pair make repeated references to people coming to Lane’s
house for the purpose of purchasing drugs. (State’s Ex. 5) Lane also asks Forrest
to help her “flip * * *taxes,” which Investigator Lauck stated means using a tax
refund to purchase drugs and selling the drugs for a profit. (Id.); (June 7-8, 2021
Tr. at 250-251). Lane also made several references to “my” 38-caliber weapon,
which matched the weapon and ammunition located during the execution of the
search warrant. (State’s Ex. 5); (June 7-8, 2021 Tr. at 265, 270). In the text message
communications, Lane also told Forrest that she would enlist the help of a female
friend to transport drugs with Forrest. (State’s Ex. 5); (June 7-8, 2021 Tr. at 265-
260). Lane also references Forrest paying her for “these licks,” which Investigator
Lauck interpreted to be a reference to Forrest paying Lane for selling drugs. (State’s
Ex. 5); (June 7-8, 2021 Tr. at 274-276).
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{¶26} The State also introduced several recorded jail calls that Lane made to
Forrest. (June 7-8, 2021 Tr. at 294); (State’s Ex. 23). In the first call, the pair
discusses what items law enforcement recovered from the residence. (June 7-8,
2021 Tr. at 295-296). (State’s Ex. 23). Specifically, Lane references items located
under the bed and on the countertop. (State’s Ex. 23). In the second call, Lane and
Forrest can be heard trying to ascertain the identity of the confidential information
who “set [us] up.” (Id.); (June 7-8, 2021 Tr. at 298-299).
{¶27} Here, the State presented evidence that, when viewed in a light most
favorable to the State, could lead a rational trier of fact to find that Lane had
constructive possession of the drugs and firearm located at 949 Leland Avenue. The
State presented evidence that the drugs and firearm were found in Lane’s residence,
and that she was the only adult residing at the residence. Furthermore, Lane was
the only adult present at the residence when law enforcement executed the search
warrant.
{¶28} The cocaine and heroin located on the kitchen counter were in plain
view and Lane referenced the drugs in a recorded jail telephone call to Forrest.
Furthermore, the large quantity of cocaine located in the end table was discovered
in a child’s Easter basket with nail care products, which the jury could infer
belonged to Lane. With respect to the firearm located in the residence, the firearm
was located in close proximately to the location where the large quantity of cocaine
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was found. Moreover, Lane repeatedly referenced a firearm in her text
conversations and, implicitly, in her recorded telephone conversation with Forrest.
This evidence, when viewed in a light most favorable to the State, could allow the
jury to infer that Lane exercised dominion and control over the cocaine, heroin, and
firearm.
{¶29} Lane’s first assignment of error is overruled.
{¶30} With respect to Lane’s fourth assignment of error, we note that Lane
separately argues that the trial court erred by denying her Crim.R. 29 motion for
acquittal with respect to the firearm specification and possession-of-cocaine
offense. However, we “review[ ] a denial of a Crim.R. 29 motion for judgment of
acquittal using the same standard that is used to review a sufficiency of the evidence
claim.” State v. Lightner; 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶ 11.
Accordingly, through our analysis of Lane’s first assignment of error, wherein we
found that sufficient evidence supported all of Lane’s convictions, we have
effectively preempted Lane’s argument that the trial court erred by denying her
motion for acquittal pursuant to Crim.R. 29.
{¶31} Lane’s fourth assignment of error is overruled.
Manifest Weight of the Evidence
{¶32} Lane separately argues that her convictions are against the manifest
weight of the evidence. However, in making her manifest-weight argument, Lane
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simply duplicates claims she made when challenging the sufficiency of the evidence
supporting the same claims. Her claims are not proper manifest-weight arguments,
and in similar circumstances, we have refused to construct, and then analyze, a
manifest-weight argument on behalf of the defendant. See State v. Laws, 3d Dist.
Allen No. 1-20-10, 2021-Ohio-166, ¶ 32 (declining to construct and then resolve a
manifest-weight argument where defendant’s manifest-weight argument was
nothing more than a restatement of his earlier sufficiency-of-the-evidence
argument).
{¶33} Nevertheless, we have little difficulty concluding that Lane’s
convictions are not against the manifest weight of the evidence. As discussed
throughout this opinion, there is overwhelming evidence that on October 2, 2019,
Lane possessed cocaine, heroin, and a firearm. While Lane claimed that she was
not aware of at least some of the drugs located in her home, “[a] verdict is not against
the manifest weight of the evidence because the finder of fact chose to believe the
State’s [evidence] rather than the defendant’s version of the events.” State v.
Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Finally, the other
elements of the crimes absent the element of possession are undisputed. Thus,
Lane’s convictions are not against the manifest weight of the evidence.
{¶34} Lane’s second assignment of error is overruled.
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Assignment of Error No. III
The trial court erred when it failed to remove a juror, who failed
to disclose a relationship with a member of Appellant’s family,
and when it refused to grant a mistrial on this issue.
{¶35} Lane argues in her third assignment of error that the trial court erred
by declining to remove a juror who disclosed a relationship with a member of Lane’s
family. Lane further argues that the trial court erred by failing to grant a mistrial on
the issue. For the reasons that follow, we disagree.
{¶36} The record reflects that, following closing arguments and instructions
to the jury, the jury was excused from the courtroom, but instructed to not yet begin
deliberations. (June 7-8, 2021 Tr. at 560-562). Then, the trial court informed the
parties that one of the jurors, Juror Four, had informed the bailiff that she recognized
one of the spectators in the courtroom and believed that the spectator was Lane’s
relative. (Id. at 561-562). Due to space limitations in the courtroom, Lane’s family
and friends were not present during voir dire, and, accordingly, Juror Four did not
observe this person until after the trial commenced. (Id. at 561).
{¶37} At the agreement of the parties, the trial court invited Juror Four into
the courtroom for inquiry. (Id. at 562). In response to the trial court’s inquiry, Juror
Four stated that she recognized a spectator that she identified as “Sharon,” and that
she assumed that Sharon was a member of Lane’s family. (Id. at 564). Sharon
identified herself to the court as Lane’s grandmother. (Id.). Juror Four stated that
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Sharon was a “friend,” and then Juror Four clarified that she knew Sharon from the
community center where Juror Four used to work and where Sharon came to eat.
(Id. at 564-565). Juror Four explained that the community center shut down
approximately a year prior, but before that time, she saw Sharon “pretty often”. (Id.
567-568).
{¶38} Juror Four admitted that she saw Sharon in the courtroom the previous
day, but did not inform the court until the second day of the trial. (Id. at 567). She
explained that because it was her first time serving on a jury, she did not know what
to do or whether the fact that she recognized Sharon would be a problem. (Id.). The
bailiff confirmed that Juror Four informed her earlier in the day that she recognized
one of the spectators that she believed may be a member of Lane’s family. (Id. at
569-570).
{¶39} The trial court engaged in the following dialogue with Juror Four:
[Trial court]: * * * So you think whatever you know about [Sharon]
and whatever relationship you have had with her[,] you can put that
aside and judge this case on the facts, the evidence that you have seen
and heard the last couple of days fairly and impartially?
[Juror Four]: Yes.
(June 7-8, 2021 Tr. at 566).
{¶40} Following the trial court’s inquiry, the State requested the trial court
remove Juror Four from the jury and replace her with an alternate. (Id. at 568-569).
Lane’s trial counsel did not take a position on the matter and said that although he
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understood the State’s concerns, he would leave the issue to the trial court’s
discretion. (Id. at 569). The trial court denied the State’s request and stated that
Juror Four has given the trial court “no reason” to believe that she would have a
problem being fair and impartial. (Id. at 570-571). In support of its decision, the
trial court referenced Juror Four’s verbal responses to the parties’ inquiry as well as
her body language. (Id. at 570).
{¶41} Then, the court adjourned for the jury to deliberate. (Id. at 571).
Several hours later, the jury reached a verdict. (Id. at 571-572). Before the jury
entered the courtroom to announce the verdict, the State informed the trial court that
while the jury deliberated the case, the prosecutors listened to Lane’s jail calls and
discovered a phone call Lane made to Forrest during jury deliberations. (Id. at 572-
575). During the phone conversation, Lane informed Forrest that one of the jurors
was her stepdad’s aunt and the juror had “practically raised [Lane].” (Id. at 572-
575). In the jail call, Lane referenced that this same juror knew Lane’s grandmother,
Sharon, from a “soup kitchen.” (Id. at 573). Accordingly, the State believed that
Lane was referring to Juror Four. (Id.).
{¶42} The State then played the relevant phone call for the trial court. (Id.
at 575). (See Court’s Ex. AA). Thereafter, the State requested the trial court remove
Juror Four, seat an alternate juror in her place, and instruct the jurors to restart
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deliberations. (Id. at 575-576). Lane’s trial counsel requested a mistrial. (Id. at
576-578).
{¶43} Then, the trial court engaged in the following conversation with Lane:
[Trial court]: Miss Lane, is that information accurate? Did one
of those jurors practically raise you?
[Lane]: No ma’am.
[Trial court]: Then what on earth are you referring to in that
conversation? You are not under oath Miss Lane,
but I would encourage you not to lie to the court.
What were you referring to when you were
speaking to Mr. Forrest about she practically
raised me?
[Lane]: She know [sic] my stepdad.
[Trial court]: I’m sorry[,] what?
[Lane]: She knows my stepdad.
[Trial court]: She knows your stepdad?
[Lane]: Yes, ma’am.
[Trial court]: Is she your stepdad’s aunt?
[Lane]: I don’t believe so.
[Trial court]: Then what do you mean she practically raised
you? Did she watch you when you were young?
[Lane]: No, ma’am.
[Trial court]: Did you go to her house?
[Lane]: No, ma’am.
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[Trial court]: So what did you mean by she practically raised
me?
[Lane]: I’m just saying, that is my stepdad. He knows
her. That’s all.
[Trial court]: How long has your stepdad been a part of your
life?
[Lane]: Like five years.
(June 7-8, 2021 Tr. at 578-580).
{¶44} At the agreement of the parties, Juror Four was brought into the
courtroom, and the trial court engaged in the following conversation with her:
[Trial court]: * * * [Juror Four], a couple of things. I do not
want you to tell me what the verdict is, but you
all have reached verdicts on whatever was
necessary, correct?
[Juror Four]: Yes.
[Trial court]: Okay. It has come to our attention that you might
be related to Miss Lane?
[Juror Four]: I don’t know that.
[Trial court]: Okay, it has been brought to our attention that
your relationship with Miss Lane is one of an
aunt or some sort of relative like that to her
stepfather. What is your stepfather’s name[,]
Miss Lane?
[Lane]: Desi.
[Defense counsel]: Desi what?
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[Lane]: Desi ---
[Juror Four]: Oh, Desi.
[Trial court]: Okay.
[Juror Four]: Desmond --- is my nephew.
[Trial court]: Alright. Okay. Desmond is your nephew?
[Juror Four]: Yes.
[Trial court]: Have you done anything with Miss Lane and her
family?
[Juror Four]: I don’t know Miss Lane. I don’t know her.
[Trial court]: Okay.
[Juror Four]: But I didn’t know Desmond was ---
[Trial court]: You didn’t know that until this minute?
[Juror Four]: Yea, right.
[Trial court]: Okay. So Miss Lane’s not been to your house?
You all been to family functions together?
[Juror Four]: Huh, uhm.
[Trial court]: Not do Christmas’ [sic] together and all that kind
of stuff?
[Juror Four]: No. Not that I know of * * *.
[Trial court]: Is the only person out there that you see and
seated at this table here [is] Miss Sharon that you
referred to earlier? Is [Sharon] the only person
that you know?
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[Sharon]: She is referring to me.
[Juror Four]: Yea, yea, I know [Sharon], yea.
[Trial court]: Okay. But none of those other folks seated out
there [indicating Lane’s family] look familiar to
you?
[Juror Four]: I don’t know them. * * *
[Trial court]: Okay. Alright. Thank you very much * * *. I
appreciate it.
[Juror Four]: Yea.
(June 7-8, 2021 Tr. at 580-583).
{¶45} Following the trial court’s inquiry of Juror Four, the State repeated its
request for the trial court to remove Juror Four, replace her with an alternate, and
order the jury to begin deliberations anew. (Id. at 583-584). Lane’s trial counsel
acknowledged that Juror Four appeared to be honest in her communications and
further conceded that Juror Four did not realize that she was related to Lane’s
stepfather until the trial court brought it to her attention. (Id. at 584). However,
Lane’s trial counsel repeated its request for a mistrial “out of an abundance of
caution.” (Id. at 585).
{¶46} After a brief recess to research the issue, the trial court denied the
State’s request to replace Juror Four and restart deliberations and Lane’s motion for
a mistrial. (Id. at 591). The trial court stated that when discussing the situation with
Juror Four, the trial court was able to observe her, including her body language and
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demeanor and, due to her observations, she believed Juror Four was being honest.
(Id. at 590-592). Specifically, the trial court said that Juror Four “seemed
completely and utterly genuine in her lack of knowledge” of her relationship to
Lane’s stepfather until she was informed of the connection. (Id. at 590). In contrast,
the trial court found Lane’s phone conversation with Forrest “highly suspect.” (Id.
at 589-591). The trial court also noted that if Lane was concerned about Juror Four
improperly influencing the jury, particularly in a negative way toward her, she was
aware of the relationship between Juror Four and her stepfather. (Id. at 591-592).
Accordingly, if there was an error in seating Juror Four or in her participation in
deliberations, Lane invited the error. (Id. at 592).
{¶47} “Crim.R. 24(G) and R.C. 2945.29 address removal of jurors during
criminal trials.” State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohio-
2794, ¶ 45. R.C. 2945.29 provides that the trial court may discharge a juror “[i]f,
before the conclusion of the trial, a juror becomes sick, or for other reason is unable
to perform his duty.” Similarly, Crim.R. 24(G)(1) states that alternate jurors “shall
replace jurors who, prior to the time the jury retires to consider its verdict, become
or are found to be unable or disqualified to perform their duties.” Additionally,
“Crim.R. 24(G)(1) allows the court to replace a juror after deliberations have
begun.” State v. Hunt, 10th Dist. Franklin No. 12AP-103, 2013-Ohio-5326, ¶ 71.
“However, ‘[i]f an alternate replaces a juror after deliberations have begun, the court
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must instruct the jury to begin its deliberations anew.’” Id., quoting Crim.R.
24(G)(1).
{¶48} “A trial judge is empowered to exercise ‘sound discretion to remove a
juror and replace him with an alternate juror whenever facts are presented which
convince the trial judge that the juror’s ability to perform is duty is impaired.’” State
v. Brown, 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, ¶ 46, quoting State v.
Hopkins, 27 Ohio App.3d 196, 198 (11th Dist.1985); see also State v. Taylor, 2d
Dist. Montgomery No. 28463, 2020-Ohio-3481, ¶ 18. An abuse of discretion is
more than a mere error in judgment; it suggests that a decision is unreasonable,
arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{¶49} “‘A mistrial should not be ordered in a criminal case merely because
some error or irregularity has intervened, unless the substantial rights of the accused
or the prosecution are adversely affected * * *.’” State v. A.M., 8th Dist. Cuyahoga
No. 106400, 2018-Ohio-4209, ¶ 23, quoting State v. Reynolds, 49 Ohio App.3d 27(2d Dist.1988), paragraph two of the syllabus. “‘Mistrials need be declared only
when the ends of justice so require and a fair trial is no longer possible.’” State v.
Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 58, quoting State v.
Franklin, 62 Ohio St.3d 118, 127 (1991). “In determining whether a defendant was
deprived of a fair trial, we must determine whether, absent the error or irregularity,
‘the jury would have found the appellant guilty beyond a reasonable doubt.’” State
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v. Junod, 3d Dist. Mercer No. 10-18-08, 2019-Ohio-743, ¶ 44, quoting State v.
Morris, 10th Dist. Franklin Nos. 18AP-208 and 18AP-209, 2018-Ohio-5252, ¶ 44,
citing State v. Maurer, 15 Ohio St.3d 239, 267 (1984). “To determine whether the
error resulted in prejudice, we must consider (1) the nature of the error, (2) whether
an objection was made, (3) whether the trial court provided corrective instructions,
and (4) the strength of the evidence against the defendant.” Id., citing Morris at ¶
44.
{¶50} “Whether to grant a mistrial is within the sound discretion of the trial
court.” Hansen at ¶ 58, citing State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059,
¶ 42, citing State v. Glover, 35 Ohio St.3d 18, 19 (1988). Thus, we review a trial
court’s decision whether to grant a motion for a mistrial for an abuse of discretion.
Junod at ¶ 43, citing State v. Sage, 31 Ohio St.3d 173, 182 (1987).
{¶51} Lane now argues that the trial court erred by not dismissing Juror Four
or declaring a mistrial as a result of Juror Four’s participation in deliberations.
Lane suggests that Juror Four’s conversations with the court “raised legitimate
concerns about [her] candor and suitability to serve as a juror.” (Appellant’s
Amended Brief at 6-7). We disagree.
{¶52} Although Lane now argues that the trial court failed to satisfactorily
inquire on the issue, our review of the record suggests that the trial court did inquire
thoroughly of Juror Four twice regarding her potential relationship to Lane’s
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grandmother and stepfather. Juror Four consistently stated that she did not know
Lane, despite her connections to Lane’s family members, and that she could be fair,
impartial, and judge the case on the merits. Furthermore, the record suggests that
Juror Four was forthcoming throughout the proceedings about her relationships to
members of Lane’s family. To wit, Juror Four approached the bailiff to inform her
that she recognized a spectator in the courtroom, and she believed the spectator was
a member of Lane’s family. The record also indicates Juror Four was forthcoming
regarding her relationship to Lane’s stepfather. Upon the trial court informing her
of the name of Lane’s stepfather, Juror Four instantly acknowledged that she is
Lane’s stepfather’s aunt. All of the parties present during the trial court’s inquiry
expressed a belief that Juror Four was candid with the court. Importantly, by all
accounts, Juror Four was not aware of her relationship to Lane’s stepfather until
after the jury had reached a verdict and was told of the relationship by the trial court
during its inquiry of her. Accordingly, Lane cannot demonstrate that Juror Four’s
relationship with her stepfather prejudiced Juror Four in such a way that Lane’s
substantial rights are adversely affected and a fair trial is no longer possible. Thus,
we do not find that the trial court abused its discretion by not removing Juror Four
or by denying Lane’s request for a mistrial on the issue.
{¶53} Lane’s third assignment of error is overruled.
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Assignment of Error No. V
The prosecutor engaged in affirmative misconduct during closing
argument.
{¶54} In her fifth assignment of error, Lane argues that the State engaged in
affirmative misconduct during closing arguments. Specifically, Lane alleges that the
prosecution engaged in misconduct by referencing the drug problem in the
community during closing arguments and encouraging the jury to convict Lane in
an effort to curb the local drug problem. Lane contends that the alleged improper
statements made by the State amount to prosecutorial misconduct and is sufficient
to warrant reversal.
{¶55} Here, Lane takes issue with several comments made by the
prosecution during the State’s initial closing argument. After discussing the
elements of the offenses in the context of the evidence presented during the trial, the
State made several comments regarding the drug problem in the community, an
issue that Lane’s trial counsel discussed during voir dire. Specifically, the State
said:
Ladies and gentlemen[,] yesterday during voir dire [Lane’s trial
counsel] asked all of the jurors that were paneled at the time of his
initial voir dire if they felt that there was a drug problem within our
community. The resounding answer to that question was, yes. [One
juror] told us she has worked in school systems. She has seen in
young children and elementary school[s] here in the Lima City
Schools that drugs effect [sic] everything. It has an impact on those
children. [Another juror] told us that it has been her observation
within our community that the drug problem is the root of many
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problems. That is something that we look at and from that can see the
growing problems that result from it. Not only in our community. We
heard from a juror about other communities that they have heard of or
had a relative involved in where those drugs affect the community.
We have it right here in Allen County. [Lane’s trial counsel] followed
up with asking what can be done to change that drug problem. The
resounding answer was I don’t know. I agree with you. I believe that
your answers are representative of what our community views. There
is a drug problem. What can we do about it? We don’t know at this
point. But there is one thing that can be done. One step in the right
direction is for you as the jurors to let the community know that you
care. That these illegal actions that you heard about over the last two
days * * * won’t be tolerated within our community. The drug sales,
drug possession, drug use that affect our elementary students, effect
[sic] family members, have our police officers carrying Narcan with
them because of the dangers of what can happen with drugs are not
going to be tolerated anymore and we ask that you send that message
today.
(June 7-8, 2021 Tr. at 484-486).
{¶56} The State continued by reviewing the evidence presented during the
trial. (Id. at 486-487). Then, the State remarked:
The Defendant was not a by-stander in this matter. She was fully
engrained in drug sales within our community. Those which you have
all stated you see as a problem in our community. * * * The drug
problem that you all recognize[,] it is real. It is a problem. We don’t
have the answer or it wouldn’t be a problem, but we are working
towards that and would ask that you find [the] Defendant [guilty].
Through her actions, [Lane] needs to be found that she was the root
of that problem. She is not the only root we have here, but she is a
root of that problem as the queen of the trap house[,] looking for
different types of drugs while pregnant and mothering a young child.
(Id. at 487-488).
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{¶57} “A prosecutor is entitled * * * to ‘wide latitude in summation as to
what the evidence has shown and what reasonable inferences may be drawn
therefrom.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 274,
quoting State v. Stephens, 24 Ohio St.2d 76, 82 (1970). “The test regarding
prosecutorial misconduct during closing arguments is whether the remarks were
improper and, if so, whether they prejudicially affected the substantial rights of the
defendant.” State v. Manley, 3d Dist. Allen No. 1-11-04, 2011-Ohio-5082, ¶ 14.
“In making this determination, an appellate court should consider several factors:
(1) the nature of the remarks, (2) whether an objection as made by counsel, (3)
whether corrective instructions were given by the court, and (4) the strength of the
evidence against the defendant.” State v. Braxton, 102 Ohio App.3d 28, 41 (1995).
“We evaluate the allegedly improper statements in the context of the entire trial.”
State v. Klein, 3d Dist. Union No. 14-12-09, 2013-Ohio-2387, ¶ 60, citing, State v.
Treesh, 90 Ohio St.3d 460, 464 (2001), citing State v. Keenan, 66 Ohio St.3d 402,
410 (1993). “The touchstone of the analysis ‘is the fairness of the trial, not the
culpability of the prosecutor.’” State v. Cornwell, 86 Ohio St.3d 560, 570-571
(1999), quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947 (1982).
{¶58} “‘To establish prejudice, a defendant must show that a reasonable
probability exists that, but for the prosecutor’s improper remarks, the results of the
proceeding would have been different. Thus, “[n]ot every intemperate remark by
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counsel can be a basis for reversal.”’” State v. Liles, 3d Dist. Allen No. 1-14-61,
2015-Ohio-3093, ¶ 31, quoting State v. Porter, 4th Dist. Meigs No. 10CA15, 2012-
Ohio-1526, ¶ 20, citing State v. Landrum, 53 Ohio St.3d 107, 112 (1990). If, in the
context of the entire trial, “it appears clear beyond a reasonable doubt that the jury
would have found the defendant guilty, even without the improper remarks,” then
the trial will not be deemed unfair. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-
2417, ¶ 45.
{¶59} Further, we note that, at trial, Lane did not object to the statements
which she now assigns error. Accordingly, we review the prosecution’s statements
for plain error. State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶
23. We recognize plain error “‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” State v.
Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91(1978), paragraph three of the syllabus. For plain error to apply, the trial court must
have deviated from a legal rule, the error must have been an obvious defect in the
proceeding, and the error must have affected a substantial right. State v. Barnes, 94
Ohio St.3d 21, 27 (2002). Under the plain error standard, the appellant must
demonstrate that there is a reasonable probability that, but for the trial court’s error,
the outcome of the proceeding would have been otherwise. State v. West, ____ Ohio
St.3d ___, 2022-Ohio-1556, ¶ 35-36. See also State v. McAlpin, ___ Ohio St.3d
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Case No. 1-21-33
____, 2022-Ohio-1567, ¶ 90 (“McAlpin could not establish plain error, because he
cannot show a reasonable probability that but for standby counsel’s actions, the jury
would have acquitted him.”).
{¶60} After examining the prosecutor’s statements under the four factors, we
do not find that the statements constituted plain error. We note that the State, in its
appellee’s brief, conceded that this court would likely construe the statements at
issue as improper. Indeed, “[p]rosecutors should not appeal to public sentiment in
closing arguments by urging the jurors to protect society, protect community values,
preserve civil order, or deter future lawbreaking.” State v. Loch, 10th Dist. Franklin
No. 02AP-1065, 2003-Ohio-4701, ¶ 67. The prosecutor’s statements were
improper. However, Lane has failed to demonstrate that the comments were so
prejudicial as to rise to the level of plain error. Rather, Lane baldly argues that the
statements were intended to “unfairly scare and inflame the jurors * * * by appealing
to their general fear of crime.” (Appellant’s Amended Brief at 9). Lane’s vague
argument fails to demonstrate how the prosecution’s statements affected her
substantial rights or that, but for the statements, the jury would have found Lane not
guilty. Rather, when examined in the context of the entire trial, it appears clear that
the jury would have found Lane guilty, even without the improper remarks. Tenace,
2006-Ohio-2417, at ¶ 45. As detailed in our discussion of Lane’s first, second, and
fourth assignments of error, absent the prosecutor’s statements, the State provided
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plentiful evidence from which the jury could find Lane guilty as charged in the
indictment. See Barnes at 27.
{¶61} Lane’s fifth assignment of error is overruled.
Assignment of Error No. VI
The trial court erred when it gave improper jury complicity
instructions requested by the State.
{¶62} In her sixth assignment of error, Lane argues that the trial court erred
by including a complicity jury instruction as requested by the State. Lane alleges
that the State presented no evidence demonstrating that she aided and abetted
Forrest in the crimes for which she was convicted. Accordingly, Lane contends that
the trial court erred by including a jury instruction for complicity.
{¶63} “Trial courts have a responsibility to give all jury instructions that are
relevant and necessary for the jury to properly weigh the evidence and perform its
duty as the factfinder.” State v. Shine-Johnson, 10th Dist. Franklin No. 17AP-194,
2018-Ohio-3347, ¶ 25. “Requested jury instructions should ordinarily be given if
they are correct statements of law, if they are applicable to the facts in the case, and
if reasonable minds might reach the conclusion sought by the requested instruction.”
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240. Yet, a trial court may
refuse to issue a requested jury instruction if “‘the evidence adduced at trial is legally
insufficient’ to support it.’” State v. Juntunen, 10th Dist. Franklin Nos. 09AP-1108
and 09AP-1109, 2010-Ohio-5625, ¶ 13, quoting State v. Barnd, 85 Ohio App.3d
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Case No. 1-21-33
254, 259 (3d Dist.1993). “[T]he trial judge is in the best position to gauge the
evidence before the jury and is provided the discretion to determine whether the
evidence adduced at trial was sufficient to require an instruction.” State v. Fulmer,
117 Ohio St.3d 319, 2008-Ohio-936, ¶ 72. Accordingly, we review a trial court’s
decision to include a requested jury instruction under an abuse of discretion
standard. See Juntunen at ¶ 13.
{¶64} It is well established that the prosecution “‘may charge and try an aider
and abettor as a principal[,] and if the evidence at trial reasonably indicates that the
defendant was an aider and abettor rather than a principal offender, a jury instruction
regarding complicity may be given.’” State v. Sidders, 3d Dist. Union No. 14-08-
24, 2009-Ohio-409, ¶ 37, quoting State v. Demecs, 6th Dist. Fulton No. F-5-021,
2006-Ohio-3802, ¶ 18. “In general, the rule regarding appellate review of jury
instructions is that a sole instruction must be viewed within context of the whole set
rather than in isolation.” State v. Moore, 3d Dist. Putnam No. 12-06-18, 2007-Ohio-
5905, ¶ 26.
{¶65} R.C. 2923.03 defines complicity and provides, in pertinent part:
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
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Case No. 1-21-33
(3) Conspire with another to commit the offense in violation of R.C.
2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
***
(F) Whoever violates this section is guilty of complicity in the
commission of an offense, and shall be prosecuted and punished as if
he were a principal offender. A charge of complicity may be stated in
terms of this section, or in terms of the principal offense.
{¶66} As detailed in our discussion of Lane’s first, second, and fourth
assignments of error, the State introduced sufficient evidence that Lane was
complicit in the possession of drugs, i.e. that she aided and abetted Forrest in the
possession of drugs. Specifically, the State proffered text messages and telephone
calls between Lane and Forrest which indicate that Lane had knowledge that Forrest
was selling drugs out of her home and that she was not only knowledgeable of
Forrest’s actions, but that she helped to further his actions by providing a location
from which Forrest could sell drugs, selling Forrest’s drugs in his absence, and
soliciting the help of her friends to further Forrest’s actions. Accordingly, the
State’s requested complicity jury instruction was appropriate, and the trial court did
not err by overruling Lane’s objection to the same.
{¶67} Lane’s sixth assignment of error is overruled.
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Assignment of Error No. VII
The State breached a plea agreement by withdrawing its plea
offer, after that offer had already been accepted by appellant,
resulting in unfair prejudice to Appellant.
{¶68} In her seventh assignment of error, Lane argues that the State breached
a plea agreement by withdrawing from the agreement after it had been agreed upon
by the parties but before the plea offer was finalized by the trial court.
{¶69} The record indicates that in the week prior to trial, Lane’s trial counsel
and the State continued to negotiate possible plea agreements. (June 3, 2022 Tr. at
6-7). At some point, the State and Lane reached an agreement that Lane would enter
a change of plea and enter a guilty plea to Counts One and Two. (Id. at 7-8). In
exchange, the State would recommend dismissal of the gun specifications and
recommend the mandatory minimum sentence. (Id.). Lane informed the trial court
of the agreement. (Id. at 6). However, later that same day, the State called Lane’s
trial counsel and withdrew from the agreement. (Id. at 6-12).
{¶70} Lane argues that the agreement between her and the State constituted
a binding agreement, and that the State breached a plea agreement by withdrawing
the plea offer.
{¶71} “Plea agreements are essentially contracts between the state and a
criminal defendant that must be accepted by the trial court before becoming
effective. As such, they are governed by ordinary contract principles.” State v.
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Case No. 1-21-33
Padilla, 8th Dist. Cuyahoga No. 98187, 2012-Ohio-5892, ¶ 9, citing Puckett v.
United States, 556 U.S. 129, 137, 129 S.Ct. 1423 (2009). “As with many other
contracts, a writing is not required to be enforceable, but a trial court may only
accept a plea made in open court.” Id., citing Crim.R. 11(F). “Therefore, implicit
in every plea agreement is a method of acceptance.” Id.{¶72} “‘When an allegation is made that a plea agreement has been broken,
the defendant must merely show that the agreement was not fulfilled.’” State v.
Collier, 8th Dist. Cuyahoga No. 108687, 2020-Ohio-3033, ¶ 10, quoting State v.
Legree, 61 Ohio App.3d 568 (6th Dist. 1988). “In the event of a breach, the trial
court may allow the defendant to withdraw his or her plea, or it may order specific
performance of the plea agreement, in which the case the defendant shall be
resentenced by a different judge.” Id.{¶73} However, here, the State rescinded the offer before the agreement was
accepted by the trial court. Accordingly, although it may have been poor form for
the State to withdraw the plea agreement after it was verbally accepted, we do not
find that the State breached an enforceable plea agreement. Padilla at ¶ 9; Crim.R.
11(F).
{¶74} Lane’s seventh assignment of error is overruled.
Assignment of Error No. VIII
Appellant’s trial counsel provided ineffective assistance, which
resulted in a conviction on both counts, and the firearm
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Case No. 1-21-33
specifications, and deprived appellant of substantive and
procedural due process of law.
{¶75} In her eighth assignment of error, Lane argues that she received
ineffective assistance of trial counsel. Lane claims her trial counsel was ineffective
for failing to communicate a plea deal, waiving an opening statement, and not
objecting to the introduction of a series of text messages and telephone
conversations.
{¶76} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
counsel’s performance was deficient or unreasonable under the circumstances; and
(2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.
303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052(1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic decisions, even if unsuccessful, do not generally constitute
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ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989).
{¶77} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
{¶78} First, Lane argues that her trial counsel failed to timely communicate
a plea offer. Specifically, Lane argues that her trial counsel failed to communicate
a plea offer to her that expired on May 17, 2021. However, Lane’s argument is
refuted by the record. Specifically, prior to the commencement of trial, the parties
detailed the timeline of the plea negotiations. During this dialogue, Lane and her
trial counsel both confirmed that Lane was informed of the plea offer prior to its
expiration. (June 7-8, 2021 Tr. at 6-12). Furthermore, the record indicates that, up
until several days before the commencement of trial, Lane expressed that she was
unwilling to entertain a plea deal that involved any amount of mandatory jail time,
which the plea expiring on May 17, 2021 required. Additionally, the record
indicates that the parties continued to negotiate potential plea offers after the plea
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deal at issue expired. Accordingly, we do not find Lane’s argument that her trial
counsel was ineffective for failing to disclose a plea offer to be well taken.
{¶79} Second, Lane argues that her trial counsel was ineffective for waiving
an opening statement. Lane contends that her trial counsel’s decision to waive an
opening statement “risks jurors adopting the opponent’s view of the case at the
outset of trial” and “contributed to [Lane’s] conviction in this case.” (Appellant’s
Amended Brief at 12). We disagree. “It is widely established that the decision to
make an opening or closing statement is considered a tactical decision or trial
strategy, which does not rise to the level of ineffective assistance.” State v.
Lawrence, 3d Dist. Putnam No. 12-15-11, 2016-Ohio-2768, ¶ 37. In any event,
Lane has failed to articulate precisely how she was prejudiced by her trial counsel’s
decision not to give an opening statement. Bare claims of prejudice, like those
offered by Lane in her appellant’s brief, are not enough to carry her burden on the
issue of prejudice. State v. Williams, 1st Dist. Hamilton No. C-180588, 2020-Ohio-
1368, ¶ 22.
{¶80} Next, Lane argues that her trial counsel was ineffective for failing to
object to a series of text messages from her phone, which suggested Lane was
involved in prior drug-trafficking activities. Lane argues that the text messages
were not relevant to the charges at hand pursuant to Evid.R. 402. Lane further
contends that the even if the text messages were relevant, their probative value is
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substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury. Evid.R. 403(A). Lane contends that prejudice she suffered
as a result of the admission of the text messages resulted in her convictions. We
disagree.
{¶81} Although evidence of other criminal acts of a defendant, different from
those for which the defendant is on trial is not generally admissible for the purpose
of showing the defendant’s character or propensity to commit crime, such evidence
may be “admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Evid.R. 404. However, “[a]n attorney’s decision as to whether or not to
object at certain times during trial is presumptively considered a trial tactic or
strategy that we will not disturb.” State v. Blair, 4th Dist. Washington No. 14CA33,
2016-Ohio-2872, ¶ 108. Here, the text messages reflected Lane’s knowledge of the
prior drug activity at her house. However, the text messages also established
Forrest’s knowledge of and involvement in prior drug activity at Lane’s house and
could bolster Lane’s assertion that the drugs found at her house on October 2, 2019
belonged to Forrest. Accordingly, Lane’s trial counsel could have had a tactical or
strategic reason for not objecting to the state’s introduction of the text messages.
State v. Mayse, 3d Dist. Marion No. 9-16-50, 2017-Ohio-1483, ¶ 29-30.
{¶82} Lane’s eighth assignment of error is overruled.
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Assignment of Error No. IX
The trial court erred when it imposed an aggregate prison term
of seven to ten years, which is not supported by the record.
{¶83} In his ninth assignment of error, Lane claims her sentence is not
supported by the record. Lane argues that the trial court failed to consider several
factors under R.C. 2929.12 which indicate she is unlikely to commit future crimes.
Specifically, Lane argues the trial court failed to consider R.C. 2929.12(C)(3),
which relates to whether the offender caused or expected to cause physical harm to
persons or property, and R.C. 2929.12(C)(4), which concerns situations where
substantial grounds to mitigate the offender’s conduct are present, but which are not
sufficient to constitute an affirmative defense.
{¶84} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶85} “‘Trial courts have full discretion to impose any sentence within the
statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶
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9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. A sentence
imposed within the statutory range is not contrary to law as long as the trial court
considered the purposes and principles of felony sentencing contained in R.C.
2929.11 and the sentencing factors contained in R.C. 2929.12. State v. Dorsey, 2d
Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 15.
{¶86} Recently, in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, the
Supreme Court of Ohio clarified the proper scope of review of felony sentences
imposed in cases, like the present case, where the defendant’s appeal challenged the
trial court’s application of R.C. 2929.11 and 2929.12. In Jones, the court held that
R.C. 2953.08(G)(2)(b) “does not provide a basis for an appellate court to modify or
vacate a sentence based on its view that the sentence is not supported by the record
under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. In reaching this conclusion, the court
explained that R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate
a sentence if the appellate court clearly and convincingly finds that the record does
not support the sentencing court’s finding under certain specified statutory
provisions. Id. at ¶ 28. However, R.C. 2929.11 and 2929.12 are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a). Id. Instead, only “R.C.
2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified” in
R.C. 2953.08(G)(2)(a). Id. Furthermore, the court explained that “an appellate
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court’s determination that the record does not support a sentence does not equate to
a determination that the sentence is ‘otherwise contrary to law’ as that term is used
in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Accordingly, “pursuant to Jones, an
appellate court errs if it * * * modifies or vacates a sentence ‘based on lack of
support in the record for the trial court’s findings under R.C. 2929.11 and R.C.
2929.12.’” Dorsey, 2021-Ohio-76, at ¶ 17, quoting Jones at ¶ 29.
{¶87} As a fourth-degree felony, possession of heroin in violation of R.C.
2925.11(A), (C)(6)(b) carries a sanction of 6 to 18 months’ imprisonment. R.C.
2925.11(A), (C)(6)(b); R.C. 2919.14(A)(4). As a first degree felony, possession of
heroin in violation of R.C. 2925.11(A), (C)(4)(e) carries a stated minimum term of
3 to 11 years. R.C. 2925.11(A), (C)(4)(e); R.C. 2929.14(A)(1)(a). The firearm
specification carried a one-year mandatory prison term. R.C. 2941.141. Because
(1) Lane was sentenced on more than one felony, (2) possession of cocaine in
violation of R.C. 2925.11(A), (C)(4)(e) is a qualifying felony of the first degree, and
(3) the court ordered the prison terms for Count One and Two to run concurrently,
Lane’s maximum sentence, not including the firearm specifications, is the sum of
the longest minimum term imposed plus fifty percent of the minimum term for
Count One. R.C. 2929.144(B)(3).
{¶88} The trial court sentenced Lane to a minimum stated term of 6 years’
imprisonment for the first-degree felony possession of cocaine and a definite
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sentence of 12 months’ imprisonment for fourth-degree felony possession of heroin.
Thus, the trial court sentenced Lane to a minimum term of 6 years’ imprisonment
to a maximum term of 9 years’ imprisonment plus an additional 1 year in prison for
the firearm specification. Accordingly, each of Lane’s individual sentences are
within the corresponding statutory ranges.
{¶89} Furthermore, the record affirmatively reflects that the trial court
considered R.C. 2929.11 and 2929.12 when it sentenced Lane. In the judgment
entry of sentence, the trial court stated that it fashioned Lane’s sentence it considered
“the purposes and principles of sentencing under R.C. 2929.11, the seriousness and
recidivism factors relevant to the offense and offender pursuant to R.C. 2929.12,
and the need for deterrence, incapacitation, rehabilitation, and restitution.” (Doc.
No. 141). The trial court further stated that it “is guided by the overriding purposes
of felony sentencing, including the protection of the public from future crime by the
offender and others and punishment of the offender, using the minimum sanctions
that the court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources.” (Id.). Furthermore, at
the sentencing hearing, the trial court engaged in a lengthy analysis of Lane’s
conduct in light of the purposes of felony sentencing under R.C. 2929.11 and
balanced R.C. 2929.12’s seriousness and recidivism factors. (July 21, 2021 Tr. at
31-41). “A trial court’s statement that it considered the required statutory factors,
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without more, is sufficient to fulfill its obligations under the sentencing statutes.”
State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 32. Therefore,
because Lane’s sentence is within the statutory range and the record supports that
the trial court fulfilled its obligation of considering R.C. 2929.11 and 2929.12,
Lane’s sentence is not contrary to law. Dorsey, 2021-Ohio-76, at ¶ 18-19; Maggette
at ¶ 30, 36.
{¶90} Nevertheless, Lane argues that the trial court erred by failing to
consider several factors indicating that Lane was unlikely to commit future crimes.
First, Lane argues that the trial court erred by failing to consider that in committing
the offense, she did not expect to cause physical harm to persons or property.
Second, Lane alleges that the trial court erred by failing to consider that there are
substantial grounds to mitigate her conduct, even if those grounds do not constitute
a defense. Specifically, Lane argues that “Forrest essentially intimidated and used
[Lane] and her home for his own criminal purposes.” (Appellant’s Amended Brief
at 14). However, in light of the Supreme Court of Ohio’s holding in Jones, we could
not vacate or modify Lane’s sentence on that basis. See State v. Denoyer, 3d Dist.
Allen No. 1-20-34, 2021-Ohio-886, ¶ 29 (finding that, pursuant to Jones, R.C.
2953.08(G)(2)(b) “does not provide a mechanism for an appellate court to modify
or vacate a felony sentence based upon a finding that the sentence is ‘contrary to
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law’ because it clearly and convincingly is not supported by the record under R.C.
2929.11 and R.C. 2929.12”).
{¶91} Further, notwithstanding Jones, the record belies Lane’s arguments.
Although Lane claims the trial court failed to consider that Lane did not anticipate
causing physical harm to any persons or property through her actions, the record
indicates that the trial court engaged in an extended analysis of this factor.
Additionally, Lane argues the trial court erred by failing to consider that Forrest’s
involvement in the case and relationship with Lane served as mitigation pursuant to
R.C. 2929.12(C)(4). Yet, our review of the record indicates that the trial court
considered Forrest’s alleged involvement and possible influence over Lane when
fashioning her sentence. (July 21, 2021 Tr. at 37-41). To the extent that Lane is
attempting to argue that the trial court did not assign the proper weight to the factors
at issue, her argument precluded by Jones. Jones, 2020-Ohio-6729, ¶ 42 (“Nothing
in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the
evidence in the record and substitute its judgment for that of the trial court
concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12.”).
{¶92} Lane’s ninth assignment of error is overruled.
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{¶93} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/jlr
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