State v. Laws , 2021 Ohio 166 ( 2021 )

[Cite as State v. Laws, 2021-Ohio-166.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-20-10
v.
KIARRIS M. LAWS, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2018 0527
Judgment Affirmed
Date of Decision: January 25, 2021
APPEARANCES:
Thomas J. Lucente, Jr. for Appellant
Jana E. Emerick for Appellee
Case No. 1-20-10
PRESTON, J.
{¶1} Defendant-appellant, Kiarris M. Laws (“Laws”), appeals the February
11, 2020 judgment of sentence of the Allen County Court of Common Pleas. For
the reasons that follow, we affirm.
{¶2} At some time between 7:30 and 8:00 p.m. on December 2, 2018,
Dequaisha Wilson (“Wilson”) received a phone call from Alonzo Williams, Jr.
(“Williams”). Williams called Wilson to tell her that he had clothes for A.W., their
son. Williams told Wilson that he was at an apartment complex located on the south
side of Lima, Ohio and that she could pick up the clothes there. After the phone
call, Wilson drove with A.W. to the apartment complex to meet with Williams.
Williams told Wilson that he would be waiting for her inside of a white truck.
{¶3} Once Wilson arrived at the apartment complex, she parked her vehicle
next to the white truck and waited for Williams. However, Williams did not exit
the truck, and after waiting for some time, Wilson got out of her vehicle and opened
one of the truck’s passenger-side doors. When she opened the door, she saw that
Marquavius Shurelds (“Shurelds”), not Williams, was inside of the truck.
According to Wilson, it appeared that Shurelds was searching for something inside
of the truck. Wilson asked Shurelds about Williams’s whereabouts, and Shurelds
responded that Williams was inside one of the apartments. Although Shurelds
suggested that Wilson follow him into the apartment, Wilson instead returned to her
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vehicle and waited for Williams to emerge from the apartment. However, Williams
again failed to appear.
{¶4} Eventually, Wilson got out of her vehicle for a second time, approached
the white truck, and began transferring clothes from the truck to her vehicle. A.W.
remained in his car seat in the back seat of Wilson’s vehicle. As Wilson was
transferring the clothes, Shurelds “grabbed [her] up from the back, covering [her]
mouth[,]” and told her “to shut * * * up or he was going to kill [her].” (Dec. 10-11,
2019 Tr., Vol. I, at 140-141). Shurelds then forced Wilson into the apartment, where
he proceeded to wrap a blanket around her head. With the blanket around her head,
Wilson could not see anything that was happening inside of the apartment.
{¶5} Some time later, the blanket was taken off of Wilson’s head. She
noticed that Williams, who had been stabbed, was “bleeding out” on the floor and
that Laws and another person, Lamont Jones (“Jones”), were inside of the
apartment. (Id. at 144). A.W. was then carried into the apartment and returned to
Wilson. As Wilson held A.W., Laws stood inside of the apartment and pointed a
gun at them. While Laws held Wilson and A.W. at gunpoint, Shurelds paced the
floor of the apartment and talked to Williams. Shurelds told Williams, “We need
that.” (Id. at 147). Williams responded that they “c[ould] have that” and that he
“had the key in his pocket.” (Id. at 148). After the key was retrieved from
Williams’s pocket, Jones left the apartment with the key.
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{¶6} After Jones left, Laws demanded that Wilson and Williams give him
their cell phones and passcodes so that he could “turn the locations off.” (Id. at 148-
149). Wilson and Williams both complied. Once he had turned off the location
services features on Wilson’s and Williams’s cell phones, Laws kept the phones.
{¶7} After some time, Jones returned to the apartment with money. When
Shurelds saw the money that Jones had returned with, Shurelds said that “they
need[ed] more[.]” (Dec. 10-11, 2019 Tr., Vol. I, at 151). Shurelds then placed a
call to Williams’s sister, Betty, and put the phone next to Williams’s ear. Williams
told Betty that “he needed that.” (Id. at 152-153). During this time, Laws was still
holding Wilson and A.W. at gunpoint.
{¶8} After the phone call, Shurelds, Wilson, and A.W. got into a vehicle and
drove over to Betty’s house. Laws stayed behind at the apartment with Williams.
According to Wilson, when they arrived at the house, “Betty’s baby dad c[ame]
outside with a box.” (Id. at 153-154). Then, as the vehicle pulled away from Betty’s
house, Shurelds “thr[ew] out a phone.” (Id. at 154). Wilson did not know whose
phone Shurelds threw out.
{¶9} When Shurelds, Wilson, and A.W. returned to the apartment, Shurelds
and Jones began cleaning up Williams’s blood. As he was helping Shurelds clean,
Jones said to Wilson that he was “going to get [Wilson and A.W.] out of [there].”
(Id. at 155). Laws, Shurelds, and Jones then placed Williams in Wilson’s vehicle.
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Wilson was permitted to leave with Williams and A.W. She then drove to a hospital
to seek treatment for Williams’s injuries.
{¶10} On January 17, 2019, the Allen County Grand Jury indicted Laws on
five counts: Count One of aggravated robbery in violation of R.C. 2911.01(A)(1),
a first-degree felony; Counts Two through Four of kidnapping in violation of R.C.
2905.01(A)(2), first-degree felonies;1 and Count Five of having weapons while
under disability in violation of R.C. 2923.13(A)(2), a third-degree felony. (Doc.
No. 4). Count One of the indictment contained two specifications: a three-year
firearm specification under R.C. 2941.145(A) and a repeat violent offender
specification under R.C. 2941.149(A). (Id.). Furthermore, Counts Two through
Four each contained one three-year firearm specification under R.C. 2941.145(A)
and one repeat violent offender specification under R.C. 2941.149(A). (Id.). On
January 25, 2019, Laws appeared for arraignment with his court-appointed counsel
and pleaded not guilty to the counts and specifications of the indictment. (Doc. Nos.
11, 12).
{¶11} Following arraignment, Laws retained counsel, and on March 14,
2019, Laws’s retained counsel entered a notice of appearance. (Doc. No. 25).
Laws’s retained counsel filed various motions on behalf of Laws over the next
1
Counts Two, Three, and Four charged Laws with the kidnappings of Wilson, A.W., and Williams,
respectively.
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several months. However, on September 20, 2019, Laws’s retained counsel filed a
motion to withdraw on grounds that Laws had “advised that he wish[ed] to be
represented by a court appointed lawyer * * *.” (Doc. No. 47). On October 11,
2019, the trial court granted Laws’s retained counsel’s motion to withdraw. (Doc.
No. 51). In its judgment granting the motion to withdraw, the trial court noted that
Laws “stated he did not need a court-appointed attorney.” (Id.). Nevertheless, on
October 31, 2019, Laws received a second court-appointed attorney—his third
attorney overall. (Doc. No. 57).
{¶12} On November 20, 2019, Laws subpoenaed “all camera footage from
12-2-2018 from the hours of 6PM to 10PM that shows the exterior of either of the
front entrances” to the Meijer grocery store located in Lima, Ohio. (Doc. No. 91).
In a letter dated November 27, 2019, Meijer responded that “no responsive
surveillance footage exists.” (Doc. No. 117).
{¶13} On December 5, 2019, Laws filed a notice of alibi. (Doc. No. 109).
On December 6, 2019, the State filed a response to Laws’s notice of alibi. (Doc.
No. 113). The State argued that Laws’s notice failed to conform to the Rules of
Criminal Procedure and that, as a result, “any evidence offered by [Laws] * * * for
the purpose of presenting an alibi defense” should be excluded. (Id.).
{¶14} A jury trial was held on December 10-11, 2019. Before the
presentation of evidence, the trial court ruled on whether Laws would be permitted
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to present his alibi witnesses. Laws’s third attorney noted that although the notice
of alibi was not filed at least seven days before trial as required by Crim.R. 12.1,
Laws did not inform him about his alibi until the evening of December 4, 2019.
(Dec. 10-11, 2019 Tr., Vol. I, at 3). The trial court ruled that Laws would be
permitted to present his alibi witnesses. (Id. at 11). In addition, after the trial court
overruled the State’s objections to Laws’s notice of alibi, the trial court dismissed
Count Four of the indictment pursuant to the State’s motion. (See Dec. 10-11, 2019
Tr., Vol. I, at 13); (Doc. No. 129). Count Five of the indictment was subsequently
renumbered as Count Four.
{¶15} After these initial housekeeping matters were addressed, the State
proceeded to present its case. At the close of the State’s case, Laws moved for a
judgment of acquittal under Crim.R. 29. The trial court denied Laws’s motion.
{¶16} On December 11, 2019, the jury found Laws guilty of the remaining
counts of the indictment as well as the remaining firearm specifications. (Doc. Nos.
125, 126, 127, 128). The trial court filed its judgment entry of conviction on
December 12, 2019. (Doc. No. 129).
{¶17} On January 13, 2020, Laws’s third attorney filed a motion to withdraw
from his representation of Laws on grounds that “[c]ommunication with [Laws]
ha[d] broken down.” (Doc. No. 133). On January 15, 2020, the trial court granted
Laws’s third attorney’s motion. (Doc. No. 138). Although Laws indicated that he
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was planning on retaining a new attorney, on January 24, 2020, Laws received a
third court-appointed attorney—his fourth attorney overall. (Doc. No. 144).
{¶18} At the February 10, 2020 sentencing hearing, the trial court found that
Laws is a repeat violent offender. (Feb. 10, 2020 Tr. at 10); (Doc. No. 157). The
trial court then sentenced Laws to 11 years in prison on Count One, 11 years in
prison on Count Two, 11 years in prison on Count Three, and 36 months in prison
on renumbered Count Four. (Doc. No. 157). In addition, the trial court sentenced
Laws to 3 years in prison with respect to each of the repeat violent offender
specifications associated with Counts One through Three. (Id.). The trial court also
sentenced Laws to a mandatory term of 3 years in prison with respect to each of the
firearm specifications associated with Counts One through Three. (Id.). The trial
court ordered that all of these prison terms be served consecutively for an aggregate
term of 54 years in prison. (Id.). Finally, because Laws was on postrelease control
(“PRC”) at the time the instant offenses were committed, the trial court ordered that
1,327 days of PRC time be served consecutively to the aggregate 54-year prison
term. (Id.). The trial court filed its judgment entry of sentence on February 11,
2020. (Id.).
{¶19} On February 27, 2020, Laws filed a notice of appeal. (Doc. No. 162).
He raises three assignments of error for our review.
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Assignment of Error No. I
The trial court erred in denying appellant’s motion for acquittal
at the close of the State’s case in chief, where there was legally
insufficient evidence to establish each material element of the
offenses beyond a reasonable doubt.
{¶20} In his first assignment of error, Laws argues that the trial court erred
by denying his Crim.R. 29 motion because the State presented insufficient evidence
to support his aggravated-robbery and kidnapping convictions.
{¶21} Because the purpose of a Crim.R. 29 motion for acquittal “is to test
the sufficiency of the evidence presented at trial,” 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. Willis, 12th Dist. Butler No. CA2009-
10-270, 2010-Ohio-4404, ¶ 9, citing State v. Terry, 12th Dist. Fayette No. CA2001-
07-012, 2002-Ohio-4378, ¶ 9, citing State v. Williams, 74 Ohio St.3d 569, 576
(1996); State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶ 11, citing
State v. Carter, 72 Ohio St.3d 545, 553 (1995). “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,
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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 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, citing State v. Williams, 197 Ohio
App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist.
Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test
of adequacy rather than credibility or weight of the evidence.”), citing State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶22} Laws was convicted of one count of aggravated robbery, two counts
of kidnapping, and one count of having weapons while under disability. However,
on appeal, Laws argues only that the trial court erred by denying his Crim.R. 29
motion with respect to his aggravated-robbery and kidnapping convictions. The
offense of aggravated robbery is contained in R.C. 2911.01, which provides, in
relevant part, that “[n]o person, in attempting or committing a theft offense, as
defined in [R.C. 2913.01], or in fleeing immediately after the attempt or offense,
shall * * * [h]ave a deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it, indicate that the
offender possesses it, or use it[.]” R.C. 2911.01(A)(1). The offense of kidnapping
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is contained in R.C. 2905.01, which provides, in relevant part, that “[n]o person, by
force, threat, or deception, * * * shall remove another from the place where the other
person is found or restrain the liberty of the other person * * * [t]o facilitate the
commission of any felony or flight thereafter[.]” R.C. 2905.01(A)(2). The
aggravated robbery charged in Count One served as the predicate felony for the
kidnapping charges. (See Dec. 10-11, 2019 Tr., Vol. II, at 351).
{¶23} At this point, we note that while Laws was indicted in terms of the
principal offenses, the State theorized that Laws acted in complicity with Shurelds
and Jones. (See Dec. 10-11, 2019 Tr., Vol. II, at 342-344). It was permissible for
Laws to be charged in this way. R.C. 2923.03(F) (“A charge of complicity may be
stated in terms of [R.C. 2923.03], or in terms of the principal offense.”). R.C.
2923.03, Ohio’s complicity statute, provides in relevant part that “[n]o person,
acting with the kind of culpability required for the commission of an offense, shall
* * * [a]id or abet another in committing the offense[.]” R.C. 2923.03(A)(2).
To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the evidence must show that the
defendant supported, assisted, encouraged, cooperated with, advised,
or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may
be inferred from the circumstances surrounding the crime.
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State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “‘“Evidence of aiding and
abetting may be shown by either direct or circumstantial evidence, and participation
in criminal intent may be inferred from presence, companionship, and conduct
before and after the offense is committed.”’” State v. Wright, 3d Dist. Hardin No.
6-15-14, 2016-Ohio-5465, ¶ 9, quoting State v. Rowe, 3d Dist. Seneca No. 13-10-
14, 2011-Ohio-5739, ¶ 32, quoting State v. Gragg, 173 Ohio App.3d 270, 2007-
Ohio-4731, ¶ 21 (12th Dist.). However, “‘[t]he mere presence of an accused at the
scene of the crime is not sufficient to prove, in and of itself, that the accused was an
aider and abettor.’” State v. Martinez, 3d Dist. Union Nos. 14-19-28 and 14-19-29,
2020-Ohio-4883, ¶ 24, quoting State v. Widner, 69 Ohio St.2d 267, 269 (1982). A
person who is found guilty of complicity “shall be prosecuted and punished as if he
were a principal offender.” R.C. 2923.03(F).
{¶24} Laws argues that his aggravated-robbery conviction is not supported
by sufficient evidence because the State “failed to adequately demonstrate that a
theft or attempted theft took place, which is an essential element of the aggravated
robbery charge.” (Appellant’s Brief at 10). He maintains that “[t]he record does
not indicate anywhere that [he] stole anything or that he was trying to steal
anything.” (Id.). Furthermore, concerning his kidnapping convictions, he argues
that “[i]f there were no theft or attempted theft, then there was no aggravated
robbery and if there were no aggravated robbery, there is no kidnapping under the
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statute.”2 (Id.). Consequently, Laws’s argument turns entirely on whether the State
presented sufficient evidence that he or his accomplices committed or attempted to
commit a “theft offense.”
{¶25} “Theft offense” is defined in part as “[a] violation of * * * [R.C.
2913.02].” R.C. 2913.01(K)(1). R.C. 2913.02 provides that “[n]o person, with
purpose to deprive the owner of property * * *, shall knowingly obtain or exert
control over * * * the property * * * [w]ithout the consent of the owner or person
authorized to give consent[.]” R.C. 2913.02(A)(1). “Deprive” means to “[w]ithhold
property of another permanently, or for a period that appropriates a substantial
portion of its value or use, or with purpose to restore it only upon payment of a
reward or other consideration” or to “[d]ispose of property so as to make it unlikely
that the owner will recover it.” R.C. 2913.01(C)(1)-(2). “Owner” means “any
person, other than the actor, who is the owner of, who has possession or control of,
2
Laws errs in asserting that “if there were no aggravated robbery, there is no kidnapping.” To sustain a
conviction for kidnapping under R.C. 2905.01(A)(2), the State is not required to prove that the defendant
actually committed the predicate felony. Instead, because R.C. 2905.01(A)(2) “punishes restraint or removal
with a certain purpose,” the State needs to prove only that the defendant removed the victim or restrained
their liberty “with the purpose to facilitate the commission of a felony.” (Emphasis sic.) State v. Seitz, 3d
Dist. Shelby No. 17-12-11, 2014-Ohio-2463, ¶ 17-18, citing State v. Matthieu, 3d Dist. Mercer Nos. 10-02-
04 and 10-02-05, 2003-Ohio-3430, ¶ 17. “‘[T]he eventual success or failure of the goal is irrelevant.’”
Matthieu at ¶ 17, quoting State v. Moore, 8th Dist. Cuyahoga No. 60334, 1992 WL 104220 (May 14, 1992).
Therefore, even if the State failed to present evidence sufficient to prove all of the elements of aggravated
robbery, including that Laws committed or attempted to commit a “theft offense,” Laws could still be
convicted of kidnapping under R.C. 2905.01(A)(2) if the State presented sufficient evidence that he removed
the victims or restrained their liberty for the purpose of facilitating the (ultimately unproven) aggravated
robbery. However, proof that the defendant actually committed the felony facilitated by the removal or
restraint is, of course, also sufficient to sustain a conviction under R.C. 2905.01(A)(2), and in light of our
conclusion below that the State presented sufficient evidence that Laws was complicit in the commission of
a “theft offense,” we need not uphold Laws’s kidnapping convictions on the alternative basis that the State
was not required to prove that Laws committed aggravated robbery.
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or who has any license or interest in property * * *, even though the ownership,
possession, control, license, or interest is unlawful.” R.C. 2913.01(D). “Property”
means “any property, real or personal, tangible or intangible, and any interest or
license in that property.” R.C. 2901.01(A)(10)(a).
{¶26} R.C. 2913.02(A) requires proof of two different culpable mental
states: “purpose” and “knowingly.” “A person acts purposely when it is the
person’s specific intention to cause a certain result, or, when the gist of the offense
is a prohibition against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is the offender’s specific intention to engage in
conduct of that nature.” R.C. 2901.22(A). “A person acts knowingly, regardless of
purpose, when the person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature.” R.C. 2901.22(B).
{¶27} After reviewing the record, we conclude that, when viewing the
evidence in a light most favorable to the State, any rational trier of fact could have
found that, at the very least, Laws aided and abetted Shurelds and Jones in the
commission of a theft offense. According to Wilson, while Laws held her and A.W.
at gunpoint, Shurelds told Williams, who was injured and bleeding on the floor, that
they “needed that.” (Dec. 10-11, 2019 Tr., Vol. I, at 147). Wilson testified that
Williams told Shurelds that Shurelds could have what he was looking for and that
Williams told Shurelds that he had a key on his person that would allow Shurelds to
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retrieve what he wanted. (Id. at 148). Jones, who also testified at Laws’s trial,
confirmed that he left the apartment “[t]o go get what [Williams] wanted [him] to
get,” and he clarified that he went to collect “[s]ome drugs and money.” (Id. at 182).
Jones stated that Williams wanted him to go get the drugs and money so that
Williams, Wilson, and A.W. “c[ould] get out of there.” (Id.). In addition, Wilson
testified that Shurelds was apparently dissatisfied with the amount of money with
which Jones returned and that he stated that “they need[ed] more[.]” (Id. at 151).
Wilson stated that Shurelds made Williams “straighten up to call [Betty],” which
meant that Shurelds wanted Williams “to talk correct, like as if nothing [was] going
on,” and that during the phone call with Betty, Williams told Betty that “he needed
that.” (Id. at 151-153). According to Wilson, Laws was still holding her and A.W.
at gunpoint. (Id. at 151). Further, Wilson testified that after the phone call ended,
she, A.W., and Shurelds went to Betty’s house, where a box was brought outside to
Shurelds. (Id. at 153-154). The record is unclear as to what the box contained.
{¶28} The foregoing testimony establishes that Shurelds and Jones
committed at least one theft offense on December 2, 2018. Williams, who had been
stabbed and whose child was being held at gunpoint, agreed to give Shurelds and
Jones drugs and money so that he, Wilson, and A.W. could be permitted to leave
the apartment. Although some of the property obtained by Shurelds and Jones was
apparently contraband, it was property all the same, and it is clear that Williams
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owned, possessed, or controlled the property. Furthermore, the manner in which
the money and drugs were obtained establishes a lack of valid consent. See State v.
Evans, 8th Dist. Cuyahoga No. 108648, 2020-Ohio-3968, ¶ 56 (“The subject
property was obtained in a threatening manner, establishing the lack of consent * *
*.”). Moreover, from the facts established by Wilson’s testimony and Jones’s
testimony, it can be readily inferred both that Shurelds and Jones knew that they
were obtaining Williams’s drugs and money without valid consent and that they
intended to permanently withhold Williams’s drugs and money from him.
{¶29} Finally, Wilson’s testimony and Jones’s testimony preclude the
possibility that Laws was merely present when the theft offense occurred. At
various points during the incident, Laws pointed his gun at Wilson and A.W. to keep
them at bay. In addition, Laws personally disabled the location-tracking features on
Wilson’s and Williams’s cell phones. Furthermore, according to Wilson, Laws
directed menacing comments toward her, such as that he would kill her if she was
not quiet and that he “might as well kill [her]” because she was “going to tell
everything.” (Dec. 10-11, 2019 Tr., Vol. I, at 143-144, 151). The totality of Laws’s
conduct on December 2, 2018 demonstrates that he shared in Shurelds and Jones’s
criminal purpose and that he supported and assisted Shurelds and Jones in the
commission of the theft offense. Accordingly, because we conclude that the State
presented evidence sufficient to show that Laws was at least complicit in the
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commission of a theft offense, Laws’s aggravated-robbery and kidnapping
convictions are supported by sufficient evidence.
{¶30} Laws’s first assignment of error is overruled.
Assignment of Error No. II
Appellant’s conviction was against the manifest weight of the
evidence and is contrary to law.
{¶31} In his second assignment of error, Laws argues that his aggravated-
robbery and kidnapping convictions are against the manifest weight of the evidence.
Specifically, Laws argues that “[a]s noted above in [his first assignment of error],
the State failed to prove * * * that there was a theft or attempted theft” and that
“[w]ithout a theft or attempted theft, the State’s entire case collapses as then there
is no aggravated robbery and if there is no aggravated robbery, there is no
kidnapping.” (Appellant’s Brief at 13). He concludes that “[b]ecause the State
failed to prove there was a theft and the jury convicted him anyway, the trier of fact
clearly lost its way and created * * * a manifest miscarriage of justice * * *.” (Id.).
{¶32} While Laws frames his second assignment of error as a challenge to
the weight of the evidence supporting his convictions and sets forth the standard of
review for a manifest-weight challenge in his appellate brief, he fails to advance a
proper manifest-weight argument. Laws does not attack the credibility of the State’s
witnesses. He does not maintain that the jury drew unreasonable inferences from
the evidence presented or that the jury erred in resolving evidentiary conflicts. Nor
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does Laws argue that the jury lost its way by discounting the testimony of his alibi
witness. Instead, Laws rehashes the sufficiency-of-the-evidence arguments he made
under his first assignment of error. However, “‘sufficiency and manifest weight are
two separate, legally distinct arguments.’” State v. Secriskey, 9th Dist. Summit Nos.
28093 and 28094, 2017-Ohio-4169, ¶ 26, quoting State v. Vicente-Colon, 9th Dist.
Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20. This court will not develop a
manifest-weight argument on Laws’s behalf, and we therefore decline to consider
Laws’s second assignment of error any further. See id., citing State v. Sadeghi, 9th
Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 32; State v. Shannon, 9th Dist.
Lorain No. 13CA010517, 2015-Ohio-438, ¶ 25, quoting State v. Auerswald, 9th
Dist. Medina No. 11CA0053-M, 2013-Ohio-742, ¶ 50.
{¶33} Laws’s second assignment of error is overruled.
Assignment of Error No. III
The cumulative effect of appellant’s trial counsel’s failures
deprived appellant of his rights to a fair trial and the effective
assistance of counsel as guaranteed by the Sixth Amendment to
the United States Constitution.
{¶34} In his third assignment of error, Laws argues that he received
ineffective assistance of counsel.
{¶35} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
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Kole, 92 Ohio St.3d 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 trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. 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), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).
{¶36} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Id. at 142, quoting Strickland at 694. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
{¶37} As noted in the opening pages of this opinion, Laws was represented
by four different attorneys during the pendency of this case at the trial court level.
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Laws takes issue with the performance of his first three attorneys.3 Laws claims
that his first three attorneys were ineffective in seven different respects. He also
maintains that the cumulative effect of his attorneys’ alleged errors rendered their
representation ineffective.
{¶38} In his first claim of ineffective assistance of counsel, Laws argues that
each of his first three attorneys performed deficiently with respect to the handling
of his alibi defense. Laws contends that he has consistently maintained that he spent
December 2, 2018 at his aunt’s house, leaving only to go to the Meijer store in Lima.
He notes that his first two attorneys did not attempt to obtain the surveillance video
recordings from Meijer, and he asserts that by the time his third attorney requested
the footage from the evening in question, “the footage was lost.” (Appellant’s Brief
at 16-17). Laws thus argues that his first two attorneys were ineffective because
they failed to act to obtain the surveillance video recordings—evidence that,
according to Laws, would have corroborated his alibi and changed the outcome of
his trial.
{¶39} However, under the facts of this case, we cannot determine whether
Laws’s first two attorneys performed deficiently by failing to request the
surveillance video recordings or whether Laws was prejudiced by their inaction.
3
Laws’s fourth attorney, who was appointed to represent him after he had been found guilty but before
sentencing, is counsel of record in this appeal.
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Importantly, contrary to Laws’s assertion, the record does not clearly indicate that
the surveillance footage was “lost.” Rather, in response to the subpoena, Meijer’s
representative said only that “after a review of applicable records, no responsive
surveillance footage exists.” (Doc. No. 117). From this statement, it is as possible
that the footage was never archived as it is that it was archived but later deleted.
Furthermore, even if the footage was saved but later deleted, there is nothing in
Meijer’s response letter or elsewhere in the record that speaks to Meijer’s policy
regarding the retention of video surveillance footage. Consequently, we cannot rule
out the possibility that the footage was archived but that it was erased well before
Laws’s first two attorneys began representing him. In addition, the surveillance
footage, if it ever existed, is not part of the record. We simply do not know whether
there was in fact surveillance footage depicting Laws at Meijer on the evening of
December 2, 2018, and we cannot “blindly accept” Laws’s claim that the
surveillance footage would have proven that he was there. See State v. Moorer, 10th
Dist. Franklin No. 14AP-224, 2014-Ohio-4776, ¶ 29. Laws’s argument relies
entirely on speculation—speculation that his first two attorneys could have obtained
the surveillance video footage and speculation about what the footage would have
depicted. Ultimately, “[s]peculation is insufficient to establish ineffective
assistance.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 217, citing State
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v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 219 and State v. Elmore, 111 Ohio
St.3d 515, 2006-Ohio-6207, ¶ 121.
{¶40} Laws also objects to the way in which his third attorney handled his
alibi defense. He claims that there were four people with him at his aunt’s house on
December 2, 2018, and he argues that his third attorney acted unreasonably by
calling only one of them to testify because “[t]he calling of additional witness[es]
would have bolstered the case and would have certainly given the jury reasonable
doubt.” (Appellant’s Brief at 17). Laws further notes that one of the four potential
alibi witnesses was not subpoenaed because there might have been a warrant for his
arrest, and he maintains that the warrant should not have prevented his third attorney
from attempting to call this person as a witness.
{¶41} This argument is also unavailing. As a general rule, “counsel’s
decision whether to call a witness falls within the rubric of trial strategy and will not
be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490
(2001). There are any number of reasons why Laws’s third attorney might have
elected to present the testimony of only one alibi witness. For example, with respect
to the potential witness who might have had a warrant for his arrest, Laws’s third
attorney might have concluded that knowledge of the outstanding warrant would
negatively affect the jury’s assessment of his credibility. See State v. Jones, 8th
Dist. Cuyahoga No. 81112, 2003-Ohio-3004, ¶ 28. Furthermore, as two names
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appear on Laws’s notice of alibi, the record reflects that Laws’s third attorney
originally intended to call two alibi witnesses. (See Doc. Nos. 109, 110). The fact
that only one of these witnesses ultimately testified could be the product of Laws’s
third attorney’s reasoned determination, after further investigation, that the other
witness was not believable or that the witness whose testimony was presented could
offer the most persuasive account of Laws’s alibi. Ultimately, Laws’s third
attorney’s reasons for calling only one alibi witness are not reflected in the record,
and given the presumption of competent representation, we cannot conclude that
Laws’s third attorney’s decision fell outside of the range of reasonable professional
judgment.
{¶42} In his second claim of ineffective assistance of counsel, Laws argues
that his third attorney, who represented him during his trial, was ineffective because
he failed to secure the admission of “a telephone recording that would have cast
doubt over [Wilson’s] story.” (Appellant’s Brief at 18). The alleged recording is
not part of the record. Instead, the supposed contents of the recording were entered
into the record through the proffered testimony of Toccara Laws (“Toccara”),
Laws’s cousin. Toccara testified that she received a recording from Jones in which
Wilson’s mother can be heard telling Jones that “if she don’t get the money[,] she’s
going to go to the police.” (Dec. 10-11, 2019 Tr., Vol. II, at 321). According to
Toccara, Jones can then be heard “say[ing] [that] she was going to get it.” (Id.).
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Laws faults his third attorney for attempting to use Toccara to introduce the alleged
recording because Toccara “had nothing to do with the recording.” (Appellant’s
Brief at 18). He argues that his third attorney should have asked Wilson about the
recording and that he should have “call[ed] [Jones] or [Wilson’s mother] to the stand
to authenticate the recording and offer testimony about the recording, which was
potentially exculpatory in nature.” (Id.).
{¶43} For the sake of Laws’s argument, we will assume that the recording
exists, that Toccara accurately described the contents of the recording, and that,
despite a multitude of relevancy and hearsay issues, the recording would have been
admissible both as substantive evidence and for purposes of impeachment. We will
also assume that Laws’s third attorney rendered deficient performance by failing to
ensure that the recording was admitted at trial. Even so, we cannot conclude that
there is a reasonable probability that Laws’s trial would have ended differently had
the recording been admitted. Notably, Laws’s arguments about the recording lack
any reference to prejudicial effect, other than broad declarations that the recording
would have “cast doubt” over Wilson’s testimony and that the recording was
“potentially exculpatory.” Without more, conclusory statements such as these “are
insufficient to find that counsel was ineffective.” State v. Line, 3d Dist. Allen No.
1-19-07, 2019-Ohio-4221, ¶ 13, citing State v. Gibson, 78 Ohio App.3d 501 (10th
Dist.1992). Regardless, we fail to see how admission of the recording would have
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Case No. 1-20-10
had a material effect on the outcome of Laws’s trial. The recorded conversation
does not, in any way, serve to negate any of the elements of any of the offenses of
which Laws was convicted. Furthermore, since Wilson’s mother, rather than
Wilson, was the person heard demanding money from Jones, the recording would
have been of limited value in impeaching Wilson’s testimony. Finally, even if the
recording could have been successfully used to impeach Wilson’s testimony, Jones,
the target of the apparent extortion scheme, also offered testimony that implicated
Laws in the offenses, and Laws does not specify how the recording could have been
used to undermine Jones’s testimony. (See Dec. 10-11, 2019 Tr., Vol. I, at 179-180,
187-188). Accordingly, we cannot say that Laws suffered prejudice.
{¶44} In his third claim of ineffective assistance of counsel, Laws argues that
his first three attorneys were ineffective because they failed to file any “substantive
pretrial motions,” specifically motions to suppress evidence. (Appellant’s Brief at
18). This argument is without merit. “The failure to file a motion is not per se
ineffective assistance of counsel.” State v. Costell, 3d Dist. Union No. 14-15-11,
2016-Ohio-3386, ¶ 161, citing State v. Schlosser, 3d Dist. Union No. 14-10-30,
2011-Ohio-4183, ¶ 34, citing In re Smith, 3d Dist. Hancock No. 5-01-34, 2002 WL
255126, *6 (Feb. 22, 2002). “‘Without proving that trial counsel was deficient for
failing to make certain motions and that those motions had a reasonable probability
of success, the ineffective assistance of counsel claim fails.’” Id.,-25-
Case No. 1-20-10
quoting Schlosser at ¶ 34. Here, although Laws faults his first three attorneys for
failing to file certain pretrial motions, he makes no argument whatsoever as to
whether any of these proposed motions had a reasonable probability of success. As
a result, Laws’s third claim of ineffective assistance fails.
{¶45} Laws’s fourth claim of ineffective assistance of counsel is based on
his contention that his third attorney failed to adequately prepare for trial. Laws
argues that the 40 days that his third attorney had to prepare for trial “was clearly
not enough time.” (Appellant’s Brief at 18). He observes that his third attorney did
not file the notice of alibi in a timely fashion and that he did not notify the State
until the second day of trial that Toccara would be offered as a witness. (Id.). He
claims that had his third attorney “conducted a proper pretrial investigation and
actually spent some time with [him]” before trial, his third attorney “would have
had [Toccara’s] name well before the trial date.” (Id.).
{¶46} We find no merit in Laws’s argument. The record belies Laws’s claim
that his third attorney’s inadequate pretrial investigation led to his belatedly-filed
notice of alibi and to the untimely notification of his intent to call Toccara as a
witness. Although Laws once complained that he had not talked to his third attorney
for longer than an hour at any one time in the weeks leading up to his trial, Laws
nonetheless stated that he had “told [his] lawyer who [he] wanted as [his]
witnesses.” (Dec. 10-11, 2019 Tr., Vol. I, at 10-11). The record thus supports that,
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in the limited time that he had before trial, Laws’s third attorney spoke to Laws
regarding the witnesses that Laws desired to present. Yet, at trial, Laws’s third
attorney indicated that he was not told about the identities of Laws’s two potential
alibi witnesses until less than a week before trial and that he was not informed about
Toccara’s proposed testimony until the morning of the second day of trial. (Dec.
10-11, 2019 Tr., Vol. I, at 3, 6); (Dec. 10-11, 2019 Tr., Vol. II, at 311, 315). This
suggests that the late filings and notifications were attributable not to Laws’s third
attorney’s lack of investigation but to Laws’s last-second disclosures. Moreover, at
least with respect to Laws’s potential alibi witnesses, Laws was not prejudiced
because the trial court permitted Laws to present his alibi witnesses notwithstanding
the fact that his notice of alibi was filed less than seven days before trial. (Dec. 10-
11, 2019 Tr., Vol. I, at 12); (Dec. 10-11, 2019 Tr., Vol. II, at 300).
{¶47} Laws “has the burden of demonstrating that his counsel rendered
ineffective assistance by failing to conduct an adequate investigation.” State v.
Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 212, citing State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, ¶ 104, citing Strickland, 466 U.S. at 687. He has
failed to point to anything in the record that affirmatively shows what his third
attorney did or failed to do in preparation for trial. “Absent any indication in the
record * * * that counsel failed to properly investigate the case and adequately
prepare for trial and given the presumption of competent representation, we cannot
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conclude that counsel’s performance fell below an objective standard of
reasonableness.” State v. Griffin, 3d Dist. Allen No. 1-03-31, 2004-Ohio-287, ¶ 17.
{¶48} In Laws’s fifth claim of ineffective assistance of counsel, Laws argues
that his third attorney ineffectively cross-examined the State’s witnesses. He argues
that his third attorney did not “vigorously question” the witnesses and that “at no
point did he try to establish [that] there was no theft, which was the basis of his
Crim.R. 29 motion.” (Appellant’s Brief at 19). In addition, Laws maintains that his
third attorney “did very little to challenge any of the scientific evidence presented,”
and he seems to fault his third attorney for relying solely on cross-examination to
challenge the State’s scientific evidence. (Id.).
{¶49} This claim is also without merit. “‘The extent and scope of cross-
examination clearly fall within the ambit of trial strategy, and debatable trial tactics
do not establish ineffective assistance of counsel.’” State v. Cooperstein, 12th Dist.
Warren No. CA2018-09-117, 2019-Ohio-4724, ¶ 29, quoting State v. Leonard, 104
Ohio St.3d 54, 2004-Ohio-6235, ¶ 146. Moreover, “it is generally a legitimate trial
strategy for defense counsel not to present expert testimony and instead rely upon
cross-examination of a state’s expert to rebut evidence of a crime.” State v. Green,
12th Dist. Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 43. Typically, then,
“‘the failure to call an expert and instead rely on cross-examination does not
constitute ineffective assistance of counsel.’” Cooperstein at ¶ 27, quoting Hunter
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Case No. 1-20-10
at ¶ 66. While we do not want to give short shrift to Laws’s arguments, after
reviewing Laws’s third attorney’s cross-examination of the State’s witnesses, we
simply cannot find any basis for concluding that his cross-examination was
professionally unreasonable. Laws’s third attorney tried to draw out inconsistencies
or contradictions in the testimonies of the State’s witnesses where he could, and he
posed informed questions to the State’s scientific expert. Although the cross-
examination may not have been as zealous or as probing as Laws wishes, it certainly
was not tantamount to no cross-examination at all. Moreover, Laws once again fails
to show, or even argue, that he was prejudiced. “Had [Laws’s third attorney] asked
more questions, there is no indication that the answers would have been helpful to
[his] defense, or that further cross-examination would have resulted in * * * not-
guilty verdict[s].” Id. at ¶ 29. Thus, with respect to his fifth claim, we conclude
that Laws has failed to demonstrate that he received ineffective assistance of
counsel.
{¶50} In Laws’s sixth claim of ineffective assistance of counsel, Laws argues
that his third attorney was ineffective in the presentation of the alibi defense and in
the way that he attempted to introduce the audio recording. Specifically, Laws again
critiques both the fact that his third attorney presented only one alibi witness and
the fact that Toccara’s testimony had to be proffered because she was not disclosed
as a witness until the second day of trial. (Appellant’s Brief at 19). He also renews
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his argument that his third attorney was ineffective because he failed to use Wilson’s
mother or Jones to authenticate the audio recording and because he did not question
Wilson’s mother or Jones about the recorded conversation. However, we have
already rejected these exact arguments in the context of Laws’s first and second
ineffective-assistance claims. Accordingly, we need not consider Laws’s sixth
claim any further.
{¶51} In his seventh claim of ineffective assistance of counsel, Laws argues
that his third attorney’s decision to waive opening and closing statements
constituted ineffective assistance of counsel. 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. While it
might have been preferable for Laws’s third attorney to make opening and closing
statements, we cannot say that it was entirely outside the range of reasonable
professional judgment. Laws’s entire defense strategy was based on proving that
he was not present at the apartment during the incident on December 2, 2018. It
was a straightforward defense, which did not require clarification via thorough
opening and closing statements. Although Laws’s third attorney’s decision to focus
solely on Laws’s alibi rather than putting some focus on potential deficiencies in the
State’s case might be a debatable trial tactic, it was not an obviously flawed decision.
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Laws’s third attorney’s decision to forgo opening and closing statements was
entirely consistent with the overall defense strategy. See State v. Keith, 79 Ohio
St.3d 514, 537 (1997) (trial counsel’s decision to forgo opening and closing
statements in penalty phase of capital case was not unreasonable as it “complied
with appellant’s decision not to present mitigating evidence and comported with his
claims of innocence”). In any event, Laws has failed to articulate precisely how he
was prejudiced by his third attorney’s decision to opt out of opening and closing
statements. Accordingly, Laws’s seventh claim of ineffective assistance of counsel
fails as well.
{¶52} Finally, Laws argues that even if some of his claims of ineffective
assistance of counsel fail on an individual basis, his first three attorneys’ deficient
conduct, when viewed cumulatively, deprived him of the effective assistance of
counsel. Yet, we have for the most part determined that Laws’s first three attorneys
either did not render professionally deficient or unreasonable performance or that
the record does not contain sufficient information to draw conclusions about the
reasonableness of their performance. In only one instance did we assume deficient
performance on the part of Laws’s attorneys, and in that instance, we concluded that
Laws failed to establish prejudice. In short, given the particular manner in which
we resolved each of Laws’s individual claims of ineffective assistance of counsel,
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we have no basis for concluding that Laws’s attorneys’ purported deficiencies
combined to deny Laws a fair trial.
{¶53} Laws’s third assignment of error is overruled.
{¶54} 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
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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