State v. Brooks ( 2020 )

[Cite as State v. Brooks, 2020-Ohio-4123.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2019 CA 0104
LADASIA BROOKS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2018 CR 0832
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 18, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP WILLIAM T. CRAMER
PROSECUTING ATTORNEY 470 Olde Worthington Road
JOSEPH C. SNYDER Suite 200
ASSISTANT PROSECUTOR Westerville, Ohio 43082
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0104 2
Wise, J.
{¶1} Appellant Ladasia Brooks appeals her convictions and sentences entered
by the Richland County Court of Common Pleas, following a jury trial.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On September 20, 2018, Appellant Ladasia Brooks was indicted with a six-
count indictment: Count One: Aggravated Burglary, a felony of the first-degree, in violation
of R.C. §2925.11(A)(1); Count Two: Burglary, a felony of the second-degree, in violation
of R.C. §2911.12(A)(1); Count Three: Possession of Criminal Tools, a felony of the fifth-
degree, in violation of R.C. §2923.24(A); Count Four: Assault, a misdemeanor of the first
degree, in violation of R.C. §2903.13(A); Count Five: Domestic Violence, a misdemeanor
of the first degree, in violation of R.C. §2919.25(A); Count Six: Criminal Damaging, a
misdemeanor of the second-degree, in violation of R.C. §2909.06(A)(1).
{¶4} On October 7, 2019, Appellant proceeded to jury trial.
{¶5} At trial, the State presented the following testimony and evidence.
{¶6} Daniel Myers testified he and Appellant have a five-year-old child together.
(T. at 250-251). Mr. Myers broke off his relationship with Appellant in May of 2018. (T. at
250-253). Up until June 5, 2018, the last contact that Mr. Myers had with Appellant was
to talk about a birthday party for their daughter several weeks prior to the incident. (T. at
256).
{¶7} On June 5, 2018, the day before their daughter's birthday, Mr. Myers was
living at his mother's house at 232 Bartley Avenue in Mansfield, Ohio. (T. at 257). Mr.
Myers' mother, Alicia Randolph, had locked the door when she left for work that morning.
Richland County, Case No. 2019 CA 0104 3
(T. at 421). Mr. Myers was sleeping in bed with his girlfriend Stephanie Price when he
woke up to find Appellant Ladasia Brooks standing in his bedroom. (T. at 261). Appellant
then began attacking Ms. Price by striking her in the head and pulling her hair. (T. at 261,
263, 353, 355, 452).
{¶8} Jackie Randolph, Mr. Myers' stepfather, testified that he heard yelling and
went to Mr. Myers' room with a baseball bat for protection. (T. at 394). Mr. Myers and Mr.
Randolph attempted to get Appellant off of Ms. Price. (T. at 261, 264). Appellant then
began attacking Mr. Myers and bit his ear, causing it to bleed. (T. at 261, 277-278, 362).
Once Mr. Randolph got Appellant off of Mr. Myers, she fled. Id. As Appellant fled, she
grabbed Mr. Myers’ wallet and stole $70. (T. at 265). Mr. Randolph was able to take a
picture of Appellant as she fled down the stairs. (T. at 266-267). Mr. Myers testified that
no one had given Appellant permission to be in the home on June 5, 2019. (T. at 253-
255, 261-262).
{¶9} After Appellant fled the house, Mr. Myers went downstairs and locked the
door for fear that she might return. (T. at 269). Mr. Randolph was able to take two pictures
of Appellant as she came back to his house shortly after she fled. (T. at 273). These
pictures show Appellant holding the $70 that she had just stolen from Mr. Myers' wallet.
Appellant came back to the door and punched the window in the door, breaking it. (T. at
274). After Appellant left the second time, Ms. Price went to the convenience store where
her friend, Amy Picheco, worked and told her what happened. Ms. Picheco then called
police. (T. at 277, 358).
{¶10} A year prior to the incident, Mr. Myers' mother, Alicia Randolph, who owns
the house, told Appellant that she was no longer welcome in the house after she punched
Richland County, Case No. 2019 CA 0104 4
holes in the wall. (T. at 416). Also, in the previous year, Appellant attacked Mr. Myers at
his job with mace. (T. at 455-456). Approximately three months prior to the June 5
incident, Mrs. Randolph caught Appellant in her home and again told her she was not
welcome and to never return. (T. at 417). Approximately two weeks prior to the incident,
Appellant entered the residence and stole Mr. Myers' dog. (T. at 390). Mr. Randolph
called Appellant and told her to return the dog. Id. When she returned, Mr. Randolph
confronted Appellant for taking his dog. (T. at 39)1. Appellant then produced a can of
mace and told him to come out to the street. Id. Since the dog was back in his house and
Appellant had brought her daughter with her, Mr. Randolph went back into is home. Id.
Appellant threatened Mrs. Randolph and said that she would come to the house anytime
she wanted. (T. at 418).
{¶11} On June 5, 2018, Mr. Myers was seen by a physician, Dr. Revill, and was
treated for a human bite wound to his left ear. (T. at 238, 245). Mr. Myers told Dr. Revill
that the injury came from being bitten by Appellant. (T. at 245). To treat the injury, Mr.
Myers was given a tetanus shot and prescribed the antibiotic Augmentin. (T. at 238-239).
{¶12} Ms. Price did not have health insurance so she did not seek medical
attention. (T. at 356- 357). Ms. Price' head hurt for two weeks, preventing her from taking
showers. (T. at 357). Ms. Price took Advil for the pain, but it did not help. (T. at 367-368).
After the incident, Ms. Price felt afraid to be around Mr. Myers for fear that Appellant would
attack her again, so she ended their relationship. (T. at 369).
{¶13} Subsequent to the burglary, Appellant told Mr. Myers that she was pregnant
with a second child by him. Id. Because of this, Mr. Myers gave Appellant's father $1,000
to help bond her out of jail. (T. at 339). After the baby was born, Mr. Myers got a paternity
Richland County, Case No. 2019 CA 0104 5
test through the Child Support Agency, and it came back negative as to him being the
father. (T. at 339-340).
{¶14} Mr. Myers confronted Appellant regarding this in January of 2019 and she
confessed that the child was not his. (T. at 340). Mr. Myers stated that had it not been for
this claim that this new child was his, he would not have had further contact with Appellant.
(T. at 341).
{¶15} Amy Picheco testified that on October 8, 2019, the second day of trial,
Appellant came to her place of employment over the lunch break and spoke to her. (T. at
458-462, 466). Appellant told Ms. Picheco that she was going to court and was nervous.
Id. Appellant told her that she could plead the fifth and tried to convince Ms. Picheco not
to testify. (T. at 458-459, 471-472).
{¶16} Appellant testified at trial and claimed that on May 28, 2018, Mr. Myers had
threatened to shoot her, and she filed a police report. (T. at 530-531). Appellant admitted
to entering Mr. Myers' house through a door, but claimed that she had Mr. Myers'
permission to be there. (T. at 500-501). Appellant also admitted to getting into a "tussle"
with Mr. Myers and stated that she only bit him after he bit her on the arm first and that
he had her pinned down on the bed by her wrists when she bit him. (T. at 505-506).
{¶17} Appellant testified that Myers’ step-dad then came in to the room and hit
her in the left knee with a baseball bat. (T. at 507-508). Appellant further testified that she
and Ms. Price then got into a physical altercation. (T. at 508-509).
{¶18} Appellant stated that she accidently broke the window on the door when
she was banging on it because she had left her sandal in the house. (T. at 511).
{¶19} During trial, the State dismissed Count Three.
Richland County, Case No. 2019 CA 0104 6
{¶20} On October 11, 2019, Appellant was found guilty of the remaining counts.
The trial court sentenced Appellant to seven (7) years in prison on the aggravated
burglary. The court also imposed concurrent terms of seven (7) years for the burglary, six
(6) months for the assault, six (6) months for domestic violence, and ninety (90) days for
criminal damaging, for a combined total of seven (7) years in prison. Appellant was also
given seven days of jail credit and ordered to pay $7 in restitution.
{¶21} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶22} “I. APPELLANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE TRIAL
COURT ERRONEOUSLY REQUIRED APPELLANT TO BEAR THE BURDEN OF
PROVING SELF-DEFENSE.
{¶23} “II. APPELLANT WAS DEPRIVED OF HER CONSTITUTIONAL RIGHT TO
CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HER WHEN THE
TRIAL COURT REFUSED TO ALLOW HER TO IMPEACH A WITNESS WITH JAIL
TELEPHONE CALLS THAT WERE NOT PROVIDED TO THE STATE IN DISCOVERY.
{¶24} “III. APPELLANT WAS DEPRIVED OF HER CONSTITUTIONAL RIGHT
TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HER WHEN THE
TRIAL COURT REFUSED TO ALLOW HER TO IMPEACH A WITNESS WITH A PRIOR
GUILTY PLEA FOR DRUG TRAFFICKING.
{¶25} “IV. APPELLANT WAS DEPRIVED OF HER DUE PROCESS RIGHT TO A
FAIR TRIAL WHEN THE TRIAL COURT ALLOWED EXTENSIVE EVIDENCE OF
OTHER ACTS IN VIOLATION OF EVID.R. 404(B).
Richland County, Case No. 2019 CA 0104 7
{¶26} “V. APPELLANT WAS DEPRIVED OF HER STATE AND FEDERAL
CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN
COUNSEL FAILED TO TIMELY OBJECT TO IMPROPER CHARACTER EVIDENCE
{¶27} “VI. APPELLANT WAS DEPRIVED OF HER CONSTITUTIONAL RIGHTS
TO A FAIR TRIAL BY THE ADMISSION OF EVIDENCE OF HER CONTACT WITH A
PROSECUTION WITNESS DURING TRIAL IN VIOLATION OF EVID.R. 403.
{¶28} “VII. APPELLANT WAS DEPRIVED OF HER CONSTITUTIONAL RIGHTS
TO DUE PROCESS AND A FAIR TRIAL BY THE CUMULATIVE EFFECT OF THE
ERRORS IN THIS CASE.”
I.
{¶29} In her first assignment of error, Appellant claims the trial court improperly
required her to prove self-defense. We disagree.
{¶30} In support of her argument, Appellant cites the new version of R.C.
§2901.05 which does not shift to a defendant the burden of proving self-defense. Now, it
is the State's burden to “prove beyond a reasonable doubt that the accused person did
not use the force in self-defense, defense of another, or defense of that person's
residence, as the case may be.” R.C. §2901.05(B)(1). The new version took effect on
March 28, 2019, after the date of Appellant's offense which was June 5, 2018.
{¶31} Appellant argues that because the new version of R.C. §2901.05 went into
effect prior to her trial, which took place in October, 2019, the new version of the law
should have been applied in this case.
{¶32} “A statute is presumed to be prospective in its operation unless expressly
made retrospective.” R.C. §1.48. See Van Fossen v. Babcock Wilcox Co., 36 Ohio St.3d
Richland County, Case No. 2019 CA 0104 8
100, 105, 522 N.E.2d 489 (1988). Additionally, Section 28, Article II of the Ohio
Constitution, prohibits the General Assembly from passing retroactive laws. Applying
these two provisions, the Supreme Court of Ohio has established a two-part test to
determine whether a statute may be applied retroactively. State v. Consilio, 114 Ohio
St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10.
{¶33} Under this test, a court must first determine as a threshold matter whether
the General Assembly expressly intended the statute to apply retroactively. State v.
Hubbard, 12th Dist. Butler, 2020-Ohio-856, 146 N.E.3d 593, ¶ 22. If not, the statute may
not be applied retroactively. Id. However, if the General Assembly expressly indicated its
intention that the statute apply retroactively, a court must move to the second step of the
analysis and “determine whether the statute is remedial, in which case retroactive
application is permitted, or substantive, in which case retroactive application is forbidden.”
State v. White, 132 Ohio St. 3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 27.
{¶34} The statutory amendment at issue states:
(A) Every person accused of an offense is presumed innocent until
proven guilty beyond a reasonable doubt, and the burden of proof for all
elements of the offense is upon the prosecution. The burden of going
forward with the evidence of an affirmative defense, and the burden of
proof, by a preponderance of the evidence, for an affirmative defense other
than self-defense, defense of another, or defense of the accused's
residence as described in division (B)(1) of this section, is upon the
accused.
***
Richland County, Case No. 2019 CA 0104 9
(B)(1) A person is allowed to act in self-defense, defense of another,
or defense of that person's residence. If, at the trial of a person who is
accused of an offense that involved the person's use of force against
another, there is evidence presented that tends to support that the accused
person used the force in self-defense, defense of another, or defense of
that person's residence, the prosecution must prove beyond a reasonable
doubt that the accused person did not use the force in self-defense, defense
of another, or defense of that person's residence, as the case may be.
{¶35} R.C. §2901.05 (Effective March 28, 2019).
{¶36} Here, the trial court found that the H.B. 228 amendment applied only to
offenses committed after the effective date of the amendment.
{¶37} Upon review, we find that the statute does not state, and the legislature has
not indicated, expressly or otherwise, that H.B. 228 is to be retroactively applied.
{¶38} This Court has previously found the burden-shifting changes the General
Assembly made to Ohio's self-defense statute through the passage of H.B. 228 did not
apply in circumstances where the offense(s) occurred prior to the effective date of that
statute, March 28, 2019. State v. Whitman, 5th Dist. Stark No. 2019CA00094, 2019-Ohio-
4140, 2019 WL 4942414, ¶11 (“[c]hanges to R.C. 2901.05, effective March 28, 2019, do
not apply retroactively to appellant's case” and, therefore, “[t]he statute as amended does
not provide for retroactive application”); State v. Moore, 5th Dist. Muskingum No. CT2019-
0030, 2020-Ohio-342, ¶¶ 9-12 (we find the trial court did not improperly require appellant
to prove self-defense).
Richland County, Case No. 2019 CA 0104 10
{¶39} This Court was not alone in this holding. See State v. Williams, 3d Dist.
Allen No. 1-19-39, 2019-Ohio-5381, ¶12, fn. 1 (holding it is “the version of R.C. 2901.05
in effect at the time the defendant committed the offense” that applies at the defendant's
trial); State v. Wallace-Lee, 2d Dist. Greene No. 2019-CA-19, 2020-Ohio-3681, ¶22
(“[t]his court has concluded that shifting the burden of proof on self-defense to the State
is not retroactive”); State v. Zafar, 10th Dist. Franklin No. 19AP-255, 2020-Ohio-3341,
¶31 (“Ohio courts addressing this issue, including this court, have held that the change
made by H.B. 228 ‘was not retroactive’ ”), citing State v. Ward, 10th Dist. Franklin No.
19AP-266, 2020-Ohio-465, ¶15; see, e.g., State v. Brown, 9th Dist. Wayne No.
19AP0004, 2020-Ohio-529, ¶23 (“[w]e first note that because the offense in this matter
occurred prior to March 28, 2019, former R.C. 2901.05[A] applied at the time of Mr.
Brown's trial, and it was therefore his burden to prove, by a preponderance of the
evidence, that he acted either in self-defense or in defense of others”). State v. Koch, 2d
Dist. Montgomery No. 28000, 2019-Ohio-4099, ¶103 (rejecting appellant's reliance on
Griffith in holding he was “not entitled to retroactive application of the burden-shifting
changes made by the legislature to Ohio's self-defense statute, R.C. 2901.05, as a result
of H.B. 228”); State v. Fisher, 8th Dist. No. 108494, 2020-Ohio-670, ¶24, fn. 2 (because
the defendant's trial occurred before the effective date of the amendment, the
amendments under H.B. 228 “do not apply”); State of Ohio, Plaintiff-Appellee, v. Mustafa
Zafar, Defendant-Appellant., 10th Dist. Franklin No. 19AP-255, 2020-Ohio-3341, ¶31.
{¶40} In State v. Koch, supra, the Second District, in analyzing whether R.C.
§2901.05 was to be applied retroactively, concluded it was not, finding:
Richland County, Case No. 2019 CA 0104 11
“ … H.B. 228 effected a statutory change regarding the manner in
which the burden of proof in a self-defense claim is regulated at trial. Simply
put, the instant case does not involve a constitutional issue. “Simply
because the General Assembly has shifted the burden of proof going
forward with evidence of an affirmative defense of self-defense, defense of
another, or defense of the accused's residence/vehicle, it does not equate
to finding the former statute unconstitutional.” State v. Krug, 11th Dist. Lake
No. 2018-L-056, 2019-Ohio-926, 2019 WL 1241940, ¶ 24.
State v. Koch, 2nd Dist. No. 28000, 2019-Ohio-4099, 146 N.E.3d
1238, ¶ 101.
{¶41} We are also aware that the Twelfth District recently, in State v. Gloff, 12th
Dist. Clermont, 2020-Ohio-3143, overruled its prior decisions in State v. Debord, 12th
Dist. Clinton No. CA2019-03-003, 2020-Ohio-57, 2020 WL 134170, (“appellant was ‘not
entitled to [the] retroactive application of the burden-shifting changes made by the
legislature to Ohio's self-defense statute, R.C. 2901.05, as a result of H.B. 228.’ ” Id. at ¶
14, quoting State v. Koch, 2d Dist. Montgomery, 2019-Ohio-4099, 146 N.E.3d 1238, ¶
103) and State v. Franklin, 12th Dist. Butler No. CA2019-02-026, 2020-Ohio-532, 2020
WL 774040, (“the General Assembly enacted H.B. 228 to be effective March 28, 2019
and therefore criminal trials held on or after that date must be conducted in accordance
with the provisions of that section” and that “this holds true regardless of when the
offense(s) may have occurred.” Id. at ¶ 22-23, 28). The Twelfth District reached its
decision upon finding the language of the amended statute refers to application “at the
trial of a person.” The Court found that the H.B. 228 amendment focuses on when the
Richland County, Case No. 2019 CA 0104 12
trial is held, as opposed to when the offense was committed and held “[t]he H.B. 228
amendment applies prospectively to trials,” and the “applicable burden of proof for the
affirmative defense of self-defense,” and not “the conduct giving rise to the offense.”
(Emphasis sic.). Id. at ¶ 23.
{¶42} This Court has again reviewed the language of the amended statute and
we do not agree with the Twelfth District Court of Appeal’s interpretation of the language
of the statute. We do not find the “at the trial of a person” language to be a directive
regarding the applicability of the statute, rather, it is a reference as to the time and place
the affirmative defense evidence must be presented that tends to support that the
accused person used the force in self-defense.
{¶43} Upon review, we find that Appellant was not entitled to the burden-shifting
changes as the amended statute does not apply retroactively to offenses that occurred
prior to the statute's effective date. The trial court therefore did not improperly require
Appellant to prove self-defense.
{¶44} Based on the foregoing, we find Appellant’s first assignment of error not
well-taken and hereby overrule same.
II.
{¶45} In her second error, Appellant argues the trial court erred in not allowing her
to introduce certain impeachment evidence during the cross-examination of a witness.
We disagree.
{¶46} At trial, Mr. Myers testified that he only spoke with Appellant once while she
was in jail. During defense counsel’s cross-examination of Myers, counsel sought to
introduce telephone calls between Myers and Appellant made during the time she was in
Richland County, Case No. 2019 CA 0104 13
jail. The state objected on the basis that this evidence had not been provided in discovery.
The trial court agreed and prohibited Appellant’s counsel from using evidence of the
telephone calls.
{¶47} In addition to exculpatory evidence, evidence that might be used for
impeachment purposes, where the credibility of the witness to be impeached may be
determinative of guilt or innocence, must also be disclosed. State v. Davis (Apr. 18, 1990),
Lorain App. No. 88CA004390 at 49, citing Giglio v. U.S. (1972), 405 U.S. 150, 154, 31
L. Ed. 2d 104, 108. While, the court in Davis, supra, Crim.R. 16 applies equally to both the
prosecution and the defense:
{¶48} Crim.R. 16(A) provides
(A) Purpose, Scope and Reciprocity. This rule is to provide all
parties in a criminal case with the information necessary for a full and fair
adjudication of the facts, to protect the integrity of the justice system and
the rights of defendants, and to protect the well-being of witnesses, victims,
and society at large. All duties and remedies are subject to a standard of
due diligence, apply to the defense and the prosecution equally, and are
intended to be reciprocal. Once discovery is initiated by demand of the
defendant, all parties have a continuing duty to supplement their
disclosures.
{¶49} Furthermore, in addressing Appellant's assertion that she should have been
allowed to use said evidence to impeach the witness, the issue before us is not whether
such information should have been disclosed but whether the omission of such evidence
produced a reasonable probability that, had the jury known, the jury's verdict would have
Richland County, Case No. 2019 CA 0104 14
been affected. Additionally, in her own testimony, Appellant only referred to one jail
telephone call between herself and Mr. Myers. (T. at 513).
{¶50} Based on all of the other evidence presented to the jury, we cannot find that
the outcome of the trial would have been different had Appellant been allowed to use said
evidence in an attempt to impeach the witness.
{¶51} We find Appellant's second assignment of error not well-taken and hereby
overrule same.
III.
{¶52} In her third assignment of error, Appellant contends the trial court erred in
preventing defense counsel from impeaching the victim/witness Mr. Myers with evidence
of a prior drug-related crime. We disagree.
{¶53} At trial, Appellant sought to introduce evidence that Mr. Myers had a criminal
conviction for trafficking marijuana.
{¶54} The admission or exclusion of relevant evidence rests in the sound
discretion of the trial court. State v. Sage (1987), 31 Ohio St. 3d 173, 180, 510 N.E.2d
343. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802.
Our task is to look at the totality of the circumstances in the case sub judice, and
determine whether the trial court acted unreasonably, arbitrarily or unconscionably in
allowing or excluding the disputed evidence. State v. Oman (Feb. 14, 2000), Stark
App.No.1999CA00027.
{¶55} Appellant recites Evid.R. 609, which addresses “impeachment by evidence
of conviction of crime.” The rule states in pertinent part:
(A) * * * For the purpose of attacking the credibility of a witness:
Richland County, Case No. 2019 CA 0104 15
(1) subject to Evid.R. 403, evidence that a witness other than the
accused has been convicted of a crime is admissible if the crime was
punishable by death or imprisonment in excess of one year pursuant to the
law under which the witness was convicted.
(2) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
evidence that the accused has been convicted of a crime is admissible if
the crime was punishable by death or imprisonment in excess of one year
pursuant to the law under which the accused was convicted and if the court
determines that the probative value of the evidence outweighs the danger
of unfair prejudice, of confusion of the issues, or of misleading the jury.
(3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
evidence that any witness, including an accused, has been convicted of a
crime is admissible if the crime involved dishonesty or false statement,
regardless of the punishment and whether based upon state or federal
statute or local ordinance.
{¶56} In this case, the trial court, found that Mr. Myers had been accepted into an
intervention in lieu of conviction (ILC) program and that upon his successful completion
of the program there would be no conviction.
{¶57} R.C. §2951.041(A)(1), addressing ILC procedures, states in part as follows:
If an offender is charged with a criminal offense, including but not
limited to a violation of section 2913.02, 2913.03, 2913.11, 2913.21,
2913.31, or 2919.21 of the Revised Code, and the court has reason to
believe that drug or alcohol usage by the offender was a factor leading to
Richland County, Case No. 2019 CA 0104 16
the criminal offense with which the offender is charged or that, at the time
of committing that offense, the offender had a mental illness, was a person
with intellectual disability, or was a victim of a violation of section 2905.32
of the Revised Code and that the mental illness, status as a person with
intellectual disability, or fact that the offender was a victim of a violation of
section 2905.32 of the Revised Code was a factor leading to the offender's
criminal behavior, the court may accept, prior to the entry of a guilty plea,
the offender's request for intervention in lieu of conviction. * * * .”
{¶58} R.C. §2951.041 thus provides that, upon request, certain eligible offenders
may be placed under the general control and supervision of the county probation
department, or another comparable agency, and if the individual successfully completes
an intervention plan, he will have the criminal proceedings against him dismissed. State
v. Ingram, 8th Dist. Cuyahoga No. 84925, 2005–Ohio–1967, ¶ 9, citing State v. Dempsey,
8th Dist. Cuyahoga No. 82154, 2003–Ohio–2579.
{¶59} We have recognized that a “conviction” consists of a guilty verdict and the
imposition of a sentence or penalty. See State v. Winstead, 5th Dist. Fairfield No. 13 CA
87, 2015-Ohio-1579, State v. Rowser, 5th Dist. Stark No. 2010CA00065, 2011–Ohio–
575, ¶ 15, citing State v. Whitfield, 124 Ohio St. 3d 319, 2010–Ohio–2, 922 N.E.2d 182, ¶
12.
{¶60} We therefore find no abuse of discretion in the trial court's disallowance of
impeachment of Mr. Myers by defense counsel, on the basis that at the time of trial, his
ILC participation was not a “conviction” for drug trafficking for the purposes of Evid.R.
609.
Richland County, Case No. 2019 CA 0104 17
{¶61} Appellant’s third assignment of error is overruled.
IV.
{¶62} In her fourth assignment of error, Appellant argues the trial court erred in
allowing evidence of other acts. We disagree.
{¶63} Again, the admission or exclusion of relevant evidence rests in the sound
discretion of the trial court. State v. Sage, 31 Ohio St. 3d 173, 180, 510 N.E.2d 343 (1987).
Generally, all relevant evidence is admissible. Evid.R. 402. Abuse of discretion means
more than an error of law or judgment. Rather, it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217,
450 N.E.2d 1140 (1983). Absent an abuse of discretion resulting in material prejudice to
the defendant, a reviewing court should be reluctant to interfere with a trial court's decision
in this regard. Sage, 31 Ohio St. 3d 173.
{¶64} Evidence of other acts is generally admissible if it is offered for a purpose
other than to prove the character of a person in order to show action in conformity with
that character; it is relevant when offered for that purpose; and the danger of unfair
prejudice does not substantially outweigh its probative value. State v. Kirkland, 140 Ohio
St.3d 73, 2014-Ohio-1966, ¶ 68, citing State v. Williams, 134 Ohio St. 3d 521, 2012-Ohio-
5695, ¶ 20 and Evid.R. 401, 403, and 404(B). Evidence is relevant when it has “any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
Evid.R. 401. “Under Evid.R. 403(A), ‘[a]lthough relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of confusion
of the issues, or of misleading the jury.’ ” State v. Velez, 3d Dist. Putnam No. 12-13-10,
Richland County, Case No. 2019 CA 0104 18
2014-Ohio-1788, ¶ 122, quoting State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-
33, 2005-Ohio-3761, ¶ 71. “ ‘Unfair prejudice is that quality of evidence which might result
in an improper basis for a jury decision.’ ” Id., quoting State v. Calhoun, 11th Dist.
Ashtabula No. 2010-A-0057, 2012-Ohio-1128, ¶ 82.
{¶65} Evidence of other crimes, wrongs, or acts of an accused tending to show
the plan with which an act is done may be admissible for other purposes, such as those
listed in Evid.R. 404(B); to show “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
{¶66} In considering other acts evidence, trial courts should conduct a three-step
analysis. The first step is to consider whether the other acts evidence is relevant to making
any fact that is of consequence to the determination of the action more or less probable
than it would be without the evidence. Evid.R. 401. Next, the trial court is to consider
whether evidence of the other crimes, wrongs, or acts is presented to prove the character
of the accused in order to show activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B),
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Finally, a trial court is to consider whether the probative value of the
other acts evidence is substantially outweighed by the danger of unfair prejudice. See
Evid.R 403, Williams, at ¶¶ 19-20.
{¶67} “Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the
common law with respect to evidence of other acts of wrongdoing, they must be construed
against admissibility, and the standard for determining admissibility of such evidence is
strict.” State v. Broom, 40 Ohio St. 3d 277, 281-82, 533 N.E.2d 682, (1988). As cautioned
Richland County, Case No. 2019 CA 0104 19
by the Ohio Supreme Court in State v. Lowe, 69 Ohio St. 3d 527, 634 N.E.2d 616 (1994),
“... we therefore must be careful...to recognize the distinction between evidence which
shows that a defendant is the type of person who might commit a particular crime and
evidence which shows that a defendant is the person who committed a particular crime.”
Id. at 530, 634 N.E.2d 616. Evidence to prove the ‘type’ of person the defendant is to
show he acted in conformity therewith is barred by Evid.R. 404(B).
{¶68} Here, the State was permitted to introduce the testimony of Mr. Myers, Mrs.
Randolph and Ms. Picheco as to prior instances of conduct of Appellant such as attacking
Mr. Myers with mace, stealing his dog and threatening Mrs. Randolph, to show that based
on such conduct, it was unreasonable to believe her position that she had permission to
enter Mr. Myers’ home.
{¶69} As Appellant’s defense strategy in this case was based on her assertions
that she did have permission to enter Mr. Myers’ home, we find the trial court’s decision
to allow the introduction of said evidence was proper as to “proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶70} Appellant’s fourth assignment of error is overruled.
V.
{¶71} In her fifth assignment of error, Appellant argues she was denied the
effective assistance of counsel. We disagree.
{¶72} Appellant argues her counsel was ineffective in failing to timely object to the
testimony of “other acts” by the Randolphs and Mr. Picheco.
{¶73} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ohio
Richland County, Case No. 2019 CA 0104 20
adopted this standard in the case of State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373
(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective
assistance of counsel. First, we must determine whether counsel's assistance was
ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his or her essential duties to the
client. If we find ineffective assistance of counsel, we must then determine whether or not
the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
of the outcome of the trial is suspect. This requires a showing there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the trial would have
been different. Id.
{¶74} Trial counsel is entitled to a strong presumption all decisions fall within the
wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St. 3d 673, 675,
693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio
Supreme Court have held a reviewing court “need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland
at 697, 104 S. Ct. 2052. Even debatable trial tactics and strategies do not constitute
ineffective assistance of counsel. State v. Clayton, 62 Ohio St. 2d 45, 402 N.E.2d 1189
(1980).
{¶75} Initially, we note that Appellant’s counsel did, in fact, object to the “other
acts” testimony by Ms. Picheco, however, Appellant argues that such objection was not
raised earlier enough. With regard to the failure to object concerning the testimony by the
Randolphs, Appellant fails to direct this Court to the specific failure.
Richland County, Case No. 2019 CA 0104 21
{¶76} Upon review, having found no error in the trial court’s allowance of such
evidence, we find Appellant’s allegations and this assignment of error must fail for lack of
evidence that trial counsel's performance was deficient.
{¶77} Appellant’s fifth assignment of error is overruled.
VI.
{¶78} In her sixth and final assignment of error, Appellant argues that she was
deprived of her constitutional rights to due process and a fair trial by the cumulative effect
of the errors in this case.
{¶79} Pursuant to the doctrine of cumulative error, a judgment may be reversed
where the cumulative effect of errors deprives a defendant of his constitutional rights,
even though the errors individually do not rise to the level of prejudicial error. State v.
Garner (1995), 74 Ohio St. 3d 49, 64, 656 N.E.2d 623, certiorari denied (1996), 517 U.S.
1147, 116 S. Ct. 1444, 134 L. Ed. 2d 564.
{¶80} Because we have found no instances of error in this case, the doctrine of
cumulative error is inapplicable.
Richland County, Case No. 2019 CA 0104 22
{¶81} Appellant’s sixth assignment of error is overruled.
{¶82} Accordingly the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0812