State v. Bricher ( 2024 )

[Cite as State v. Bricher, 2024-Ohio-394.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
CASE NO. 10-23-02
PLAINTIFF-APPELLEE,
v.
ALAN J. BRICHER, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 22-CRM-069
Judgment Affirmed
Date of Decision: February 5, 2024
APPEARANCES:
Peter Galyardt for Appellant
Erin M. Minor for Appellee
Case No. 10-23-02
MILLER, J.
{¶1} Defendant-Appellant, Alan J. Bricher (“Bricher”), appeals the March
13, 2023 judgment entry issued by the Mercer County Court of Common Pleas.
Following a two-day trial, a jury found Bricher guilty of seven offenses, and the trial
court sentenced him to an aggregate prison term of eight to twelve years. For the
reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} Bricher and Zachary Frazier (“Frazier”) were friends. They met each
other in 2011 while in prison, and Bricher later married the mother of Frazier’s
oldest child. At least as of March 2022, Frazier was living on the couch at Bricher’s
residence (a trailer) in Coldwater, Ohio. Based on citizen complaints and other
information, police suspected Bricher and Frazier were operating a drug-trafficking
business and began surveilling Bricher’s residence daily, starting in approximately
February 2022. According to testimony at trial, Bricher was not employed during
the course of the police surveillance.
{¶3} On May 12, 2022, officers watched Frazier leave the residence in a car
registered to Bricher. Officers followed Frazier, who went to various locations in
the Dayton area. As Frazier headed back towards Coldwater, officers saw him make
two lane violations, so they conducted a traffic stop. After a narcotics dog alerted
on the back passenger door of the car, officers conducted a search and found three
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baggies containing fentanyl in the car. The combined weight of the substances
containing fentanyl was approximately 44.84 grams. At the scene of the traffic stop,
Frazier told officers that Bricher orchestrated the drug deal and there were more
drugs—specifically, methamphetamine (“meth”)—at Bricher’s residence.
{¶4} Police officers arrested Frazier and then obtained a search warrant for
Bricher’s residence. During the subsequent search, officers found personal items
belonging to Bricher (including a wallet containing his driver’s license) alongside
several items related to drugs and drug trafficking. This included a ledger with
names and weights next to the names (including the name “Twan”); rolling papers;
cut straws; several “stash containers,” two of which had methamphetamine residue;
and Narcan. Hidden behind a piece of drywall in another room, officers found two
electronic scales, as well as a list of names and phone numbers. Officers also found
$550 in cash, all in 50- or 100-dollar bills. Officers did not find anything in the
residence that identified Frazier.
{¶5} When Frazier implicated Bricher on May 12 at the scene of the traffic
stop (prior to his arrest), Frazier did not have any deal in place with the prosecutor’s
office. The same was true when Frazier spoke to officers a second time (now after
his arrest), when he provided information consistent with what he had told officers
at the scene of the traffic stop. At trial, Frazier testified he divulged this information
because he realized at that point how much trouble he was in, knew he would be
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“going away for a while” to prison, and he “wanted to get back to [his] kids” as
quickly as possible. (Tr. at 269).
{¶6} As a result of the investigation and his admissions, Frazier was indicted
on three counts. A few months later, he made an agreement with the prosecutor to
testify as a State’s witness at Bricher’s trial and pleaded guilty to two counts
(engaging in a pattern of corrupt activity and possession of fentanyl), while the State
dismissed the third count (trafficking in a fentanyl-related compound). The trial
court sentenced Frazier to 30 months in prison on the first count, to be served
concurrently with his sentence of four-to-six years in prison on the possession count.
{¶7} On May 19, 2022, Bricher was indicted by the grand jury. The court
held a jury trial from March 8 to March 9, 2023 on seven counts:
1. Engaging in a Pattern of Corrupt Activity, in violation of R.C.
2923.32(A)(1), a second-degree felony;
2. Trafficking in a Fentanyl-Related Compound, in violation of
R.C. 2925.03(A)(2), a first-degree felony;
3. Possession of a Fentanyl-Related Compound, in violation of
R.C. 2925.11(A), a first-degree felony;
4. Aggravated Possession of Drugs, in violation of R.C.
2925.11(A), a fifth-degree felony;
5. Aggravated Possession of Drugs, in violation of 2925.11(A), a
fifth-degree felony;
6. Possessing Criminal Tools, in violation of 2923.24(A), a fifth-
degree felony; and
7. Illegal Use or Possession of Drug Paraphernalia, in violation
of R.C. 2925.14(C)(1), a fourth-degree felony.
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{¶8} Prior to trial, the State filed a Bill of Particulars. Regarding Count 1
(engaging in a pattern of corrupt activity), it expanded the date range to “on or about
March 1, 2022 to May 12, 2022” and specified that “[t]he predicate offenses for this
charge are Counts 2 and 3 of the Indictment, as well as uncharged instances of
possession of and trafficking in methamphetamine and fentanyl in quantities
constituting felonies of the fourth degree or more serious felonies.”
{¶9} At trial, several witnesses testified for the State, including Frazier.
According to Frazier, he would sell drugs for Bricher and also pick up drugs in
Dayton for Bricher. This included the May 12, 2022 trip, when Bricher had asked
him to do a drug run, gave him cash to buy fentanyl, and gave him the names of
who to meet up with that day to get the drugs (one of which was Twan). Frazier
testified he picked up two bags of drugs from Twan: a bulk amount and a small bag
for his own personal use. Frazier paid Twan with the cash he had received from
Bricher. Frazier used the fentanyl in the small bag then went to another location
where he picked up two more bags of fentanyl from a different person, again paying
for the drugs with the cash he had received from Bricher. He put the three remaining
bags of fentanyl—which Frazier testified was “a lot more” than the amount he had
personally used—underneath the backseat of his car. He was headed back to
Bricher’s residence when the police pulled him over for the lane violations.
{¶10} Frazier also testified at trial about the general nature of the drug runs
he would do for Bricher. He would pick up drugs—sometimes meth, sometimes
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fentanyl, sometimes both—at least twice a week. According to Frazier, Bricher
would arrange the drug runs. Bricher would call the drug dealers; Bricher would
give Frazier the money to buy the drugs; Bricher would tell Frazier who he would
be meeting to obtain the drugs; and Bricher would let Frazier use Bricher’s car to
drive from Bricher’s residence to meet the drug dealers. After completing the drug
buys as Bricher instructed, Frazier would bring the drugs back to Bricher who would
then weigh the drugs on a digital scale to verify they were the correct amount
purchased. Bricher would usually store the drugs in his bedroom.
{¶11} Frazier testified he also sold both methamphetamine and fentanyl for
Bricher. Frazier would watch Bricher measure the drugs for the buyers using a
scale. Initially, drug buyers contacted Bricher, who would then have Frazier deliver
the drugs to the buyer. Later, the buyers would directly contact Frazier, who would
then go to Bricher and get the drugs in order to make the sale. Frazier would use
one of Bricher’s vehicles to make these drug deliveries.
{¶12} Regarding the quantity of methamphetamine he would typically pick
up for Bricher, Frazier testified: “In the beginning [i.e., early March 2022], it was
smaller amounts, like quarter pounds, half pounds, but towards the end [i.e., when
he was arrested on May 12, 2022], it was more one or two pounds.” (Tr. at 244-
246). Concerning the quantity of fentanyl he would pick up, he testified: “It’s like
the meth, it started off slow, smaller, but towards the end, about maybe an ounce or
more.” (Id. at 244-245). In summary, “every week, twice per week, from early
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March to when [he] got arrested in May,” Frazier made drug runs arranged by
Bricher with the amount of drugs increasing as time went on—but always in
amounts that were much more than for personal use. (Id. at 245-246). With respect
to drug costs and proceeds, Frazier testified a gram of methamphetamine would cost
about $15; he would sell it for $20 or $25. (Id. at 257-58). There was no similar
testimony regarding the cost or proceeds of the fentanyl.
{¶13} Also during the trial, the State played portions of phone calls made by
Bricher while in jail awaiting trial. (See Tr. at 401-415; State’s Exhibit 46). In one
call, Bricher asked his wife to reach out to Frazier and tell him all will be forgiven
if he “forgets” his statement to the police. In another call, Bricher stated he “just
can’t stop selling dope.” (Id.).
{¶14} After the State rested its case, and the trial court denied Bricher’s
Crim.R. 29 motion, Bricher decided not to call any witnesses and rested his case.
The judge gave the jury instructions. This included instructions regarding witness
credibility and accomplice testimony. For example, the judge told the jury:
As jurors, you are the sole judges of the facts, the credibility of the
witnesses, and the weight to give to the testimony in evidence. To
weigh the evidence, you must consider the credibility of each witness
who testifies. You will use the tests of truthfulness which you use in
your daily lives. These tests include * * * their intelligence, interest
and bias, if any, together with all the facts and circumstances
surrounding the testimony of that witness.
***
In this case, you heard the testimony of a codefendant, or someone
who would be known as an accomplice. The testimony of an
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accomplice does not become inadmissible because of their complicity,
moral turpitude or self-interest, but the admitted or claimed
complicity of a witness who testifies may affect his credibility and
make his testimony subject to grave suspicion, and require that it be
weighed with great caution. It is for you, as jurors, in light of all the
facts presented to you from the witness stand, to evaluate the
testimony of an accomplice and determine the quality and worth of
that testimony, or the lack of quality and worth.
(Tr. at 456-458). This latter paragraph corresponds with a requirement in the
complicity statute, R.C. 2923.03(D).
{¶15} The jury returned a verdict of guilty on all seven offenses. On March
10, 2023, the trial court held a sentencing hearing. The trial court found the second
and third offenses merged. The judge sentenced Bricher to a term of eight to twelve
years in prison for count two. The trial court ordered the terms of incarceration for
the remaining offenses to run concurrently to this sentence. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶16} Bricher raises five assignments of error for our review:
First Assignment of Error
Alan Bricher’s pattern-of-corrupt activity and first-degree-felony drug
trafficking and possession findings of guilt are not supported by the
manifest weight of the evidence. Fifth and Fourteenth Amendments,
United States Constitution; Article I, Sections 10 and 16, Ohio
Constitution. Tr. 279, 284-287, 290-291, 410, 412, 416, 457-458.
Second Assignment of Error
Alan Bricher’s pattern-of-corrupt-activity conviction is not supported
by sufficient evidence. Fifth and Fourteenth Amendments, United
States Constitution; Article I, Sections 10 and 16, Ohio Constitution.
R.C. 2923.31(D); R.C. 2923.31(I)(2)(c); Crim.R. 29. Tr. 145-438, 439-
444, 460-461.
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Third Assignment of Error
The trial court committed plain error, thereby abusing its discretion,
and violated Alan Bricher’s constitutional due process rights when it
provided an improper, inaccurate, and misleading jury instruction for
the pattern-of-corrupt-activity charge. Fifth and Fourteenth
Amendments, United States Constitution; Article I, Sections 10 and 16,
Ohio Constitution. R.C. 2923.31(E); R.C. 2923.31(I)(2)(c). Crim R.
52(B). Tr. 460-461.
Fourth Assignment of Error
Ohio’s sentencing scheme of potentially enhanced penalties for
qualifying first- and second-degree felonies as administratively
determined by the Department of Rehabilitation and Correction, which
was applied to Alan Bricher, is unconstitutional. Sixth and Fourteenth
Amendments, United States Constitution; Article I, Sections 5 and 14,
Ohio Constitution. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753, ¶ 39-53; State ex rel. Bray v. Russell, 89 Ohio St.3d 132,
135, 729 N.E.2d 359 (2000). Mar. 13, 2023 Judgment Entry.
Fifth Assignment of Error
Alan Bricher’s trial counsel rendered ineffective assistance of counsel,
in violation of his constitutional rights. Sixth and Fourteenth
Amendments, United States Constitution; Article I, Sections 10 and 16,
Ohio Constitution; Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.E.2d 674 (1984). Sentencing Tr. 11-27.
III. DISCUSSION
{¶17} In his reply brief and at oral argument, Bricher withdrew his fourth
assignment of error, in light of the Ohio Supreme Court’s decision in State v.
Hacker, --- Ohio St.3d ---, 2023-Ohio-2535. Therefore, we proceed with addressing
the remaining assignments of error in the order presented.
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A. First Assignment of Error
{¶18} In the first assignment of error, Bricher argues the findings of guilt for
the engaging-in-a-pattern-of-corrupt-activity offense (Count 1), drug trafficking
offense (Count 2), and drug possession offense (Count 3) are not supported by the
manifest weight of the evidence. According to Bricher, it was Frazier who
committed all the criminal acts, asserting that “the evidence would look the exact
same if [Frazier] coordinated all the acts and asked to borrow Mr. Bricher’s car to
perform them.” (Appellant’s Brief at 4). Bricher also says that, “while complicit
liability requires only that Mr. Bricher solicited or procured the accomplice, the only
evidence pointing toward that possibility is [Frazier’s] word.” (Id.)
1. Standard of Review
{¶19} The “manifest-weight-of-the-evidence standard of review applies to
the state’s burden of persuasion.” State v. Messenger, 171 Ohio St.3d 227, 2022-
Ohio-4562, ¶ 26. “To evaluate a claim that a jury verdict is against the manifest
weight of the evidence, we review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such
a manifest miscarriage of justice that we must reverse the conviction and order a
new trial.” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168, citing State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Yet, “[o]nly in
exceptional cases, where the evidence ‘weighs heavily against the conviction,’
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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.
2. Drug Trafficking (Count 2)
{¶20} Looking first to Count 2, drug trafficking is proscribed by R.C.
2925.03. The statute states, in relevant part:
(A) No person shall knowingly * * * [p]repare for shipment, ship,
transport, deliver, prepare for distribution, or distribute a controlled
substance or a controlled substance analog, when the offender knows
or has reasonable cause to believe that the controlled substance or a
controlled substance analog is intended for sale or resale by the
offender or another person.
***
If the drug involved in the violation is a fentanyl-related compound *
* * whoever violates division (A) of this section is guilty of trafficking
in a fentanyl-related compound.
***
If the amount of the drug involved * * * exceeds twenty grams but is
less than fifty grams * * * trafficking in a fentanyl-related compound
is a felony of the first degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a felony
of the first degree.
R.C. 2925.03(A)(2), (C)(9).
{¶21} The trial judge instructed the jury regarding complicity to drug
trafficking and explained: “The State of Ohio has presented a theory that the
Defendant acted in complicity with the principal offender, Zachary Frazier, in
commission of the offense of trafficking in a fentanyl-related compound.” (Tr. at
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461). The complicity statute states, in relevant part: “No person, acting with the
kind of culpability required for the commission of an offense, shall * * * [s]olicit or
procure another to commit the offense” or “[a]id or abet another in committing the
offense.” R.C. 2923.03(A)(1), (2); see also State v. Lamarr, 3d Dist. Logan No. 8-
04-39, 2005-Ohio-6030, ¶ 8 (“[i]t is well-settled law that the prosecution may
advance a complicity theory even though a criminal defendant was indicted as the
principal offender”). The complicity statute also provides that someone who is
guilty of complicity in the commission of an offense shall be punished as if he were
a principal offender. R.C. 2923.03(F).
{¶22} Here, police officers found approximately 44.84 grams of substances
containing fentanyl in a car registered to Bricher and driven by Frazier on May 12,
2022. Frazier’s testimony demonstrates Bricher solicited him to procure the
fentanyl, having asked Frazier to make the May 12, 2022 trip to Dayton, giving
Frazier cash to buy the fentanyl, and directing Frazier to meet with Twan and
another supplier to obtain the fentanyl. Frazier also testified that he picked up bags
of substances containing fentanyl and paid for the drugs with the cash he had
received from Bricher. In the phone recordings played for the jury, Bricher (1)
asked his wife to reach out to Frazier and tell Frazier all would be forgiven if Frazier
would forget his statements to the police and (2) said he can’t stop selling dope.
{¶23} Even considering the concerns with accomplice testimony, the
evidence weighing in favor of the jury’s conclusion that Bricher trafficked in a
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fentanyl-related compound “is weightier than the evidence that” he was not. State
v. Thompson, 3d Dist. Seneca No. 13-17-26, 2018-Ohio-637, ¶ 100 (determining
the jury’s conclusion defendant-appellant was preparing cocaine for distribution
was not against the manifest weight of the evidence). At the least, the evidence
shows Bricher was complicit in Frazier knowingly transporting a controlled
substance when he knew (or had reasonable cause to believe) the controlled
substance was intended for sale or resale by Frazier or himself.
{¶24} Bricher’s argument that Frazier’s testimony was “the only evidence
pointing toward” Bricher soliciting or procuring Frazier to commit the offense is
incorrect. There was additional evidence. For example, Bricher’s jail calls
supported Bricher’s knowledge and participation in the illegal drug transactions, as
do the items found during the search of his residence. Moreover, “even when a
conviction is based solely or substantially upon accomplice testimony, it is not
necessarily improper or against the manifest weight of the evidence.” State v. Fox,
4th Dist. Washington No. 14CA36, 2015-Ohio-3892, ¶ 23 (collecting cases); see
also State v. Taylor, 10th Dist. Franklin No. 10AP-939, 2011-Ohio-3162, ¶ 24 (“[a]s
the Supreme Court of Ohio has recognized * * * a jury is not precluded from basing
a criminal conviction on the uncorroborated testimony of an accomplice”). The jury
was made aware of the charges against Frazier, the plea agreement he had reached
with the prosecutor in return for his testimony, the charges he was convicted of
committing, and the sentence he received as a result of his conduct. He was cross-
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examined by Bricher’s counsel, and he testified about his involvement as an
accomplice, his agreement with the prosecutor, and any bias he may have had.
Additionally, the trial court gave cautionary instructions regarding Frazier’s
testimony, including how his testimony was “subject to grave suspicion” and must
“be weighed with great caution.” (Tr. at 457-58). “We also note that the jury was
able to view [Frazier’s] direct and cross-examination, and was in the best position
to observe his demeanor, gestures, and voice inflections.” Fox, 2015-Ohio-3892, at
¶ 24 (guilty verdict was not against the manifest weight of the evidence, despite the
jury’s reliance on the accomplice’s testimony); see also State v. Holland, 3d Dist.
Auglaize No. 2-03-27, 2004-Ohio-537, ¶ 3 (even when determining whether a
conviction is against the manifest weight of the evidence, “[t]he fact-finder’s verdict
must be granted due deference as it is in a better position to determine credibility of
the witnesses”). And, a jury can make reasonable inferences from the evidence.
Thompson, 2018-Ohio-637, at ¶ 102.
{¶25} Having reviewed the record as a whole, we do not find the evidence
weighs heavily against the conviction, that the trier of fact lost its way, or that a
manifest miscarriage of justice occurred. “We will not substitute our judgment for
that of the jury.” Fox, 2015-Ohio-3892, at ¶ 24; see also Taylor, 2011-Ohio-3162,
at ¶ 26-27 (where the jury was aware of the potential credibility concerns presented
by an accomplice’s testimony, the convictions were not against manifest weight of
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the evidence). Therefore, we conclude Bricher’s conviction for drug trafficking
(count 2) is not against the manifest weight of the evidence.
3. Drug Possession (Count 3)
{¶26} Although the jury found Bricher guilty of both the second offense
(trafficking in a fentanyl-related compound) and third offense (possession of a
fentanyl-related compound), the trial court merged those offenses and sentenced
Bricher only on the trafficking offense. Because we have concluded that Bricher’s
conviction on the trafficking offense was not against the manifest weight of the
evidence, an erroneous verdict on the merged count (possession) would be harmless.
State v. Smith, 4th Dist. Scioto No. 20CA3934, 2022-Ohio-371, ¶ 51 (where
defendant-appellant was found guilty of both drug trafficking and drug possession
offenses, “if sufficient evidence supports appellant’s trafficking conviction, and if
the conviction is not against the manifest weight of the evidence, an erroneous
verdict on the merged [drug possession] count would be harmless”); State v. Wolff,
7th Dist. Mahoning No. 07 MA 166, 2009-Ohio-2897, ¶ 70 (“[w]hen a trial court
dispatches with a count through merger, any error in the jury’s verdict on the merged
count is rendered harmless beyond a reasonable doubt”). Therefore, it is
unnecessary for us to analyze his manifest-weight-of-the-evidence argument with
respect to the possession offense. E.g., Smith at ¶ 69-72 (overruling assignment of
error without analyzing the manifest-weight-of-the-evidence argument concerning
the merged drug possession offense, where the appellate court found the drug
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trafficking conviction was not against the manifest weight of the evidence); State v.
Alexander, 4th Dist. Adams No. 21CA1144, 2022-Ohio-1812, ¶ 38.
4. Engaging in a Pattern of Corrupt Activity (Count 1)
{¶27} Finally, in relation to the engaging-in-a-pattern-of-corrupt-activity
offense (count 1), the applicable statute reads, “[n]o person employed by, or
associated with, any enterprise shall conduct or participate in, directly or indirectly,
the affairs of the enterprise through a pattern of corrupt activity or the collection of
an unlawful debt.” R.C. 2923.32(A)(1).
{¶28} The term “enterprise” is broadly defined to include “any individual,
sole proprietorship, partnership, * * * or other legal entity, or any organization,
association, or group of persons associated in fact although not a legal entity.” R.C.
2923.31(C). An enterprise “includes illicit as well as licit enterprises.” Id. The
phrase “pattern of corrupt activity” is defined as “two or more incidents of corrupt
activity, whether or not there has been a prior conviction, that are related to the
affairs of the same enterprise, are not isolated, and are not so closely related to each
other and connected in time and place that they constitute a single event.” R.C.
2923.31(E). And, the term “corrupt activity” includes:
engaging in, attempting to engage in, conspiring to engage in, or
soliciting, coercing, or intimidating another person to engage in * * *
conduct constituting * * * [a]ny violation of section * * * 2925.03 *
* * of the Revised Code [or] any violation of section 2925.11 of the
Revised Code that is a felony of the first, second, third, or fourth
degree * * *, when the proceeds of the violation, the payments made
in the violation, the amount of a claim for payment or for any other
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benefit that is false or deceptive and that is involved in the violation,
or the value of the contraband or other property illegally possessed,
sold, or purchased in the violation exceeds one thousand dollars, or
any combination of violations described in division (I)(2)(c) of this
section when the total proceeds of the combination of violations,
payments made in the combination of violations, amount of the claims
for payment or for other benefits that is false or deceptive and that is
involved in the combination of violations, or value of the contraband
or other property illegally possessed, sold, or purchased in the
combination of violations exceeds one thousand dollars[.]
R.C. 2923.31(I)(2)(c). Thus, both the drug trafficking and the drug possession
statutes are included as potential predicate offenses in the definition of corrupt
activity.
{¶29} Additionally, there is a monetary threshold for violations to be
considered corrupt activity. R.C. 2923.31(I)(2)(c). The violation or combination of
violations must involve proceeds, payments, claims, or value that exceeds the
statutory threshold amount of $1,000. Id. For example, one way in which drug
trafficking in violation of R.C. 2925.03 can constitute a corrupt activity is when
“‘the total proceeds of a violation of that statute or a combination of violations of
that statute’” exceed $1,000. State v. Kolle, 4th Dist. Pickaway No. 21CA8, 2022-
Ohio-4322, ¶ 38, quoting State v. Liggins, 6th Dist. Sandusky No. 16 CAS 32, 2018-
Ohio-243, ¶ 23; see also R.C. 2923.31(I)(2)(c). “Thus, individual transactions can
be aggregated to form a single corrupt activity.” Kolle at ¶ 38. “However, ‘in order
for the state to establish a pattern of corrupt activity it must produce evidence of at
least two corrupt activities where the proceeds of each corrupt activity exceeded
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$1,000.’” Id., quoting Liggins at ¶ 23. Additionally, “[c]ourts have held that
‘offenses committed by accomplices will qualify as predicate acts sufficient to
convict other participants in the enterprise of engaging in a pattern of corrupt
activity.’” State v. Donaldson, 2d Dist. Montgomery No. 29473, 2023-Ohio-234, ¶
24, quoting State v. Barnes, 6th Dist. Wood No. WD-7-024, 2008-Ohio-1854, ¶ 23.
{¶30} Here, evidence at trial showed Bricher was associated in an illicit
enterprise with Frazier that involved obtaining, transporting, and selling illegal
drugs. Yet, we agree with Bricher that any fentanyl-related incidents—including
the one on May 12, 2022—cannot qualify as “corrupt activity” under the statute.
This is because no evidence concerning the value of the fentanyl was presented at
trial.
{¶31} However, as set forth above, the Bill of Particulars filed by the State
not only identified Counts 2 and 3 as being predicate offenses for Count 1, but it
also identified “uncharged instances of possession of and trafficking in
methamphetamine * * * in quantities constituting felonies of the fourth degree or
more serious felonies” that took place between March 1, 2022 to May 12, 2022. See
State v. Thomas, 3d Dist. Allen No. 1-16-36, 2017-Ohio-4356, ¶ 66-67 (upholding
the sentence for engaging in a pattern of corrupt activity where the bill of particulars
“specifically said that the predicate offenses were those charged in Counts One,
Two, and Three, as well as uncharged instances of possession of and trafficking in
marijuana in quantities constituting at least felonies of the third degree”); State v.
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Siferd, 3d Dist. Hancock No. 5-02-09, 2002-Ohio-6801, ¶ 25 (no plain error where
State used unindicted offenses as predicate offenses for the R.C. 2923.32(A)
violation and appellant-defendant did not object when “trafficking, funding, and
possession were identified as the predicate offenses in the state’s trial brief or when
the jury was instructed as to these offenses”).
{¶32} While there was no testimony regarding the value of the fentanyl that
was purchased, possessed, or trafficked, the same is not true regarding the
methamphetamine. We note that methamphetamine is a schedule II controlled
substance, and its bulk amount is three grams or more. See 21 C.F.R. § 1308.12;
R.C. 2925.01(D)(1)(g); State v. Rhodus, 12th Dist. Butler No. CA2023-03-029,
2023-Ohio-3678, ¶ 19.
{¶33} At the trial, the State proved beyond a reasonable doubt that Bricher
at least twice violated R.C. 2925.03(A)(2) during the relevant timeframe, in
quantities of methamphetamine that constituted at least felonies of the fourth degree.
A forensic scientist for the Ohio Bureau of Criminal Investigations testified that
methamphetamine is a schedule II controlled substance. (Tr. at 316). Additionally,
an officer testified that the police found two stash containers containing
methamphetamine residue during the search of Bricher’s residence. (Id. at 172; see
also id. at 332, 336). More importantly, Frazier testified he would pick up, transport,
and sell methamphetamine for Bricher during the relevant time frame. (Id. at 243-
244, 254). Frazier also testified about the amounts and value of the trafficked
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methamphetamine. Specifically, Frazier testified: “In the beginning [i.e., early
March 2022], it was smaller amounts, like quarter pounds, half pounds, but towards
the end [i.e., when he was arrested on May 12, 2022], it was more one or two
pounds.” (Id. at 244-246). Therefore, at a minimum, Frazier acquired and
transported for sale or resale: (1) a quarter pound of methamphetamine during the
early portion of the enterprise; and (2) a pound of methamphetamine during the
latter portion of the enterprise. This was done within the context of a pattern of
Bricher and Frazier working together to acquire, transport, and sell drugs at least
twice per week, continuously every week, from early March to May 12, 2022, when
Frazier was arrested.
{¶34} Frazier testified a gram of methamphetamine would cost about $15
and he would sell it for $20 or $25. (Id. at 257-58). Given the large quantities of
methamphetamine purchased by Frazier and then sold by him and Bricher, a jury
could easily conclude that the value of the contraband involved in those two separate
violations of R.C. 2925.03 each exceeded $1,000. R.C. 2923.31(I)(2)(c).
{¶35} The quantities of methamphetamine in these two violations also each
qualify as (at least) fourth-degree felonies, thus meeting the “corrupt activity”
threshold for seriousness of the incidents. See R.C. 2923.31(I)(2)(c). Violating the
drug trafficking statute, when the drug involved “is any compound, mixture,
preparation, or substance included in schedule I or schedule II,” is a felony of the
fourth degree, regardless of how small a quantity is trafficked. R.C.
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2925.03(C)(1)(a). The seriousness of the drug trafficking violation increases as the
quantity of the controlled substance increases. R.C. 2925.03(C)(1)(c), (d), (e), (f).
{¶36} The evidence presented at trial established that Bricher solicited
Frazier to engage in multiple violations of R.C. 2925.03 involving
methamphetamine. The evidence established two or more separate instances of
corrupt activity with a value possessed, sold, or purchased exceeding $1,000 during
the time frame between March 1, 2022 and May 12, 2022. See R.C.
2923.31(I)(2)(c); R.C. 2925.03(A)(2), (C)(1).
{¶37} In conclusion, evidence at trial demonstrated that Bricher participated
in the affairs of his illicit enterprise with Frazier through a pattern of corrupt activity,
in violation of R.C. 2923.32(A)(1). Bricher’s conviction for engaging-in-a-pattern-
of-corrupt-activity is not against the manifest weight of the evidence. See State v.
Smale, 3d Dist. Marion No. 9-17-44, 2018-Ohio-5218, ¶ 20-22 (conviction for
violating R.C. 2925.03(A)(2) was not against the manifest weight of the evidence
where the jury heard testimony regarding appellant’s complicit trafficking conduct
from appellant’s roommate); State v. Cobb, 12th Dist. Butler No. CA2007-06-153,
2008-Ohio-5210, ¶ 106-07 (conviction for engaging-in-a-pattern-of-corrupt-
activity not against manifest weight of the evidence where the jury heard testimony
and recorded phone calls that offered credible evidence defendant-appellant
trafficked in drugs on multiple occasions); State v. Jazdzewski, 4th Dist. Washington
No. 14CA15, 2015-Ohio-2416, ¶ 42, 44 (rejecting appellant’s argument that his
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conviction for engaging-in-a-pattern-of-corrupt-activity was improper because it
rested on the testimony of an accomplice).
{¶38} Bricher’s first assignment of error is overruled.
B. Second Assignment of Error
{¶39} In the second assignment of error, Bricher argues the trial court erred
in overruling his Crim.R 29 motion on Count 1. He contends “the prosecution failed
to present sufficient evidence on the pattern-of-corrupt-activity offense in two ways:
(1) the threshold dollar amount, and (2) two incidents of corrupt activity as
statutorily defined.” (Appellant’s Brief at 6).
1. Standard of Review
{¶40} “A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, citing State
v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) and Thompkins, 78 Ohio
St.3d at 386. A sufficiency challenge disputes whether a party met its burden of
production at trial. Messenger, 2022-Ohio-4562, at ¶ 26. “In reviewing a record
for sufficiency, ‘[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.’” Tenace at
¶ 37, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus. Thus, “[i]n assessing the sufficiency of the evidence, we do not
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resolve evidentiary conflicts or assess the credibility of witnesses.” State v. Jackson,
3d Dist. Allen No. 1-22-27, 2023-Ohio-2193, ¶ 26; see also Jenks at 279.
2. Analysis
{¶41} For the reasons set forth in our analysis of the first assignment of error,
we determine that a rational trier of fact could have found the essential elements of
R.C. 2923.32(A)(1) proven beyond a reasonable doubt. See State v. Brownlow, 3d
Dist. Allen No. 1-02-95, 2003-Ohio-5757, ¶ 28-33 (trial court did not err in
overruling defendant-appellant’s Crim.R. 29 motion for acquittal of the R.C.
2923.32(A) count involving drug transactions).
{¶42} Concerning his first argument in support of this assignment of error,
Bricher contends “the prosecution presented no evidence regarding the proceeds of
the fentanyl from the traffic stop that supported the drug-trafficking offense.”
(Appellant’s Brief at 6). We agree, but, as shown above, that does not conclude our
analysis because there were other potential predicate offenses to support the pattern-
of-corrupt-activity conviction.
{¶43} In his second argument in support of this assignment of error, Bricher
says, “[e]xcept for the possession of fentanyl, which was merged into the drug-
trafficking offense, the drug-possession offenses in this case were fifth-degree
felonies.” (Appellant’s Brief at 7). Again, as shown above, that does not conclude
our analysis because it ignores other potential predicate offenses to support the
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pattern-of-corrupt-activity conviction, namely trafficking in methamphetamine in
quantities constituting felonies of the fourth degree or more serious felonies.
{¶44} The trial court did not err in overruling Bricher’s Crim.R. 29 motion
concerning the pattern-of-corrupt-activity offense. Bricher’s second assignment of
error is overruled.
C. Third Assignment of Error
{¶45} In the third assignment of error, Bricher argues the trial court
committed plain error “when it provided an improper, inaccurate, and misleading
jury instruction for the pattern-of-corrupt activity charge.” (Appellant’s Brief at 8).
Bricher points to alleged errors (1) in failing to define the threshold dollar amount
for drug trafficking and (2) in failing to provide an accurate statutory definition
regarding drug possession. (Id.).
1. Standard of Review
{¶46} Bricher’s counsel did not object to the trial court’s jury instructions.
Therefore, our review is limited to plain error. Crim.R. 30(A) (“[o]n appeal, a party
may not assign as error the giving or the failure to give any instructions unless the
party objects before the jury retires to consider its verdict, stating specifically the
matter objected to and the grounds of the objection”); Crim.R. 52(B); State v.
Daboni, 4th Dist. Meigs Nos. 18CA3, 18CA4, and 18CA5, 2018-Ohio-4155, ¶ 64
(because appellant did not object at trial, appellate court reviewed only for plain
error the trial court’s failure to include language in jury instructions regarding the
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$1,000 monetary threshold for the engaging-in-a-pattern-of-corrupt-activity
charge).
{¶47} To qualify for plain-error relief, the appellant must establish: (1)
occurrence of an error, i.e., a deviation from a legal rule; (2) the error was plain, i.e.,
it was an obvious defect in the trial proceedings; and (3) the error affected the
appellant’s substantial rights, meaning the error “must have affected the outcome of
the trial.” State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 36. Yet, even
when an appellant establishes those three prongs, “[n]otice of plain error under
CrimR. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; see also
Morgan, 2017-Ohio-7565, at ¶ 37; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, ¶ 23 (“even if an accused shows that the trial court committed plain error
affecting the outcome of the proceeding, an appellate court is not required to correct
it”).
2. Applicable Law
{¶48} “As a general rule, a defendant is entitled to have the jury instructed
on all elements that must be proved to establish the crime with which he is charged.”
State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980). For example,
“where specific intent or culpability is an essential element of the offense, a trial
court’s failure to instruct on that mental element constitutes error.” Id. However,
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Case No. 10-23-02
“a trial court’s failure to separately and specifically charge the jury on every element
of each crime with which a defendant is charged does not per se constitute plain
error nor does it necessarily require reversal of a conviction.” Id. at 154. “Only by
reviewing the record in each case can the probable impact of such a failure be
determined, and a decision reached as to whether substantial prejudice may have
been visited on the defendant, thereby resulting in a manifest miscarriage of justice.”
Id.
{¶49} Therefore, “[w]here a trial court’s failure to separately and specifically
instruct the jury on every essential element of each crime with which an accused is
charged is asserted to be plain error under Crim.R. 52(B), the reviewing court must
examine the record in order to determine whether that failure may have resulted in
a manifest miscarriage of justice.” Id. at paragraph three of the syllabus. For
example, the error can be overcome if there was no scenario in which the jury could
have reasonably concluded, based on the evidence, that the State did not prove the
element(s) at issue—such as where the evidence on that element is undisputed. See,
e.g., id. at 152, 155 (reversing finding of plain error in the trial court’s failure to
instruct the jury on the degree of mental culpability required to find criminal liability
under the endangering children statute); State v. Daley, 3d Dist. Seneca No. 13-13-
26, 2014-Ohio-2128, ¶ 58 (“[w]e do not find that a manifest miscarriage of justice
occurred [despite the jury instructions lacking an essential element of the offense,
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i.e., the victim being under the age of 13,] because our review of the record discloses
that the age of the victim was not a disputed fact in this case”).
3. Analysis
{¶50} We initially address the second alleged error: failing to provide an
accurate statutory definition regarding drug possession. As shown above, it was
unnecessary to consider potential predicate offenses of drug possession to convict
Bricher on Count 1 (the charge at issue in this assignment of error). Instead,
instances of drug trafficking in methamphetamine supported the conviction.
Therefore, we disagree with Bricher that, “[h]ad the instruction detailed that drug
possession had to be a first-, second-, third-, or fourth-degree felony to constitute a
corrupt activity, Mr. Bricher would not have been convicted of the pattern-of-
corrupt-activity offense because the drug-possession offenses at issue were fifth-
degree felonies.” (Appellant’s Brief at 9). This alleged error in the statutory
definition regarding drug possession does not qualify for plain-error relief.
{¶51} We next turn to the failure to define the threshold dollar amount for
drug trafficking as a predicate offense to engaging in a pattern of corrupt activity.
As explained above, the definition of “corrupt activity” sets forth a monetary
threshold in order for a violation to be considered “corrupt activity” under the
engaging-in-a-pattern-of-corrupt-activity statute. R.C. 2923.32(A)(1); R.C.
2923.31(I)(2)(c). To meet the definition of “corrupt activity,” the violation or
combination of violations must involve proceeds, payments, claims, or value that
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exceeds the statutory threshold amount of $1,000. Id. Bricher is correct that the
trial court here did not instruct the jury regarding the requisite monetary threshold.1
R.C. 2923.32(A)(1); R.C. 2923.31(I)(2)(c); see also Liggins, 2018-Ohio-243, at ¶
23 (referring to the “exceeds one thousand dollars” portion of the corrupt activity
definition as an element of an engaging-in-a-pattern-of-corrupt-activity offense).
The State concedes this error, but argues it was harmless—asserting that, “had the
trial court provided a complete jury instruction, the outcome would have been the
same.” (Appellee’s Brief at 19.)
{¶52} In line with the Ohio Supreme Court’s guidance in Adams, because
Bricher failed to object, “we must examine the record and we will only reverse the
conviction if we decide that ‘substantial prejudice may have been visited on the
defendant, thereby resulting in a manifest miscarriage of justice.’” Daley, 2014-
Ohio-2128, at ¶ 58, quoting Adams at 154. The burden “is on [Bricher] to show the
irregularity affected the outcome.” State v. Bethel, 4th Dist. Jackson No. 13CA11,
1
The trial court instructed the jury, in relevant part:
The first offense is engaging in a pattern of corrupt activity. And the Defendant is charged
with one count of engaging in a pattern of corrupt activity. Before you can find the
Defendant guilty of this offense, you must find, beyond a reasonable doubt, that the
Defendant, on or about March 1st * * * 2022, to May 12, 2022, and in Mercer County,
Ohio, while associated with an enterprise, did conduct or participate in, directly or
indirectly, the affairs of the enterprise through a pattern of corrupt activity.
***
Pattern of corrupt activity means two or more incidents of corrupt activity that are related
to the affairs of the same enterprise, that are not isolated, and are not so closely related to
each other and connected in time in place to constitute a single event. Corrupt activity
means engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing
or intimidating another person to engage in a violation, among other offenses, such as
trafficking in drugs and felony possession of drugs.
(Tr. at 459-461). Among other things, the instructions also provided definitions for “enterprise,” “conduct,”
and “participate,” as well as instructions regarding drug trafficking. (Id. at 459-464).
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Case No. 10-23-02
2014-Ohio-3861, ¶ 11. We also construe the State’s harmless error argument as an
effort to show the omission “did not affect a substantial right, i.e. it was not outcome
determinative.” Id.{¶53} A similar scenario was presented to the Fourth District Court of
Appeals in Daboni. There, “the trial court’s overall instruction and specific
definition of corrupt activity provided to the jury did not include language regarding
the monetary threshold of one thousand dollars that must be proven.” Daboni, 2018-
Ohio-4155, at ¶ 63. Thus, “the trial court’s instruction did contain an error,” but the
defendant-appellant did not object to the court’s jury instructions. Id. at ¶ 64, 66.
At trial, one of defendant-appellant’s drug “runners” testified to the amount of
heroin he would sell for defendant-appellant and the typical selling price for the
heroin he sold. Id. at ¶ 70. The appellate court explained that, “[e]mploying simple
math and applying it to the testimony, the jury could not have concluded that the
State failed to prove the monetary threshold amount of $1,000.00 required by the
statute.” Id. Therefore, the appellate court could not “conclude that the trial court’s
failure to instruct the jury on the required monetary threshold resulted in plain error
as to the first count of engaging in a pattern of corrupt activity.” Id.
{¶54} Here, as in Daboni, the omission in the jury instructions did not result
in a manifest miscarriage of justice. The evidence concerning both the value of the
methamphetamine and the amount involved in the two incidents referenced in the
first assignment of error was neither challenged nor in dispute at trial. As further
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explained in our analysis of the first assignment of error, applying the use of
common sense and simple math to Frazier’s undisputed testimony concerning the
amounts and value of the methamphetamine, there was no scenario in which the jury
could have reasonably concluded the State did not prove the requisite monetary
threshold to constitute two separate incidents of “corrupt activity” for the engaging-
in-a-pattern-of-corrupt-activity offense. We find the incomplete jury instruction did
not result in substantial prejudice to Bricher. See Adams, 62 Ohio St.2d at 154;
Daboni, 2018-Ohio-4155, at ¶ 63-70; State v. Keeling, 1st Dist. Hamilton No. C-
010610, 2002-Ohio-3299, ¶ 28 (where only one person provided testimony
concerning the events surrounding the offense, defendant-appellant did not dispute
that person’s version of the events (only his participation in them), and that person’s
testimony established the offense’s element at issue, the failure to instruct the jury
on that element was harmless because “[u]nder no possible scenario could the jury
have rationally found” the element had not been established).
{¶55} Bricher’s two cited cases are distinguishable. In Bethel, “the court’s
instructions were incorrect because they omitted the element ‘by means of a deadly
weapon or dangerous ordnance’” for a felonious assault offense. Bethel, 2014-
Ohio-3861, at ¶ 9-10. At the trial in that case, the State presented evidence that the
defendant attacked the victim with a dangerous weapon and caused injury, while the
defendant testified he never had the dangerous weapon and denied hitting the victim
with any weapon. Id. at ¶ 13. “Thus, whether [defendant-appellant] used a deadly
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weapon was very much in dispute between the parties,” and “the court’s failure to
submit that essential element to the jury caused a manifest injustice because it
deprived [defendant-appellant] of his right to have the jury decide that issue beyond
a reasonable doubt.” Id. Bricher’s other cited case is distinguishable too. In
Chamblin, the appellate court did not apply the legal standards set forth in Adams
for analyzing the error. State v. Chamblin, 4th Dist. Adams No. 02CA753, 2004-
Ohio-2252. Additionally, the appellate court in Chamblin determined the trial court
gave inadequate jury instructions on the underlying predicate offense that was the
only potential second predicate offense to support the engaging-in-a-pattern-of-
corrupt-activity conviction. Id. at ¶ 24-29. Among other distinguishing factors, the
predicate offenses here were drug trafficking offenses, but Bricher does not
challenge the drug trafficking instructions. Ultimately, we disagree with Bricher’s
assertion that, “[w]ithout the faulty instruction, there could be no guilty finding
because there were not two incidents of corrupt activity as statutorily defined, and,
therefore, no pattern.” (Appellant’s Brief at 10).
{¶56} Bricher’s third assignment of error is overruled.
D. Fifth Assignment of Error
{¶57} In the fifth assignment of error, Bricher contends his trial counsel
rendered ineffective assistance of counsel when she (1) failed to challenge the
constitutionality of Ohio’s sentencing scheme, and (2) failed to object to the jury
instructions for the pattern-of-corrupt-activity offense. (Appellant Brief at 17).
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Case No. 10-23-02
1. Standard of Review and Applicable Law
{¶58} To establish ineffective assistance of counsel, the appellant “must
show (1) deficient performance by counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, ¶ 118.
{¶59} With respect to the first requirement, “[i]n 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.” State v. Houston, 3d Dist. Shelby No. 17-10-06, 2010-Ohio-6070, ¶ 35,
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). “Counsel is entitled to a strong presumption that all decisions fall within
the wide range of reasonable professional assistance.” Id., citing State v. Sallie, 81
Ohio St.3d 673, 675, 693 N.E.2d 267 (1998). “Tactical or strategic trial decisions,
even if unsuccessful, do not generally constitute ineffective assistance.” Id. at ¶ 36,
citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). “Rather, the
errors complained of must amount to a substantial violation of counsel’s essential
duties to his client.” Id.{¶60} Regarding the second requirement, “prejudice results when ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.’” Id., quoting State v. Bradley, 42 Ohio St.3d
136, 141-42, 538 N.E.2d 373 (1989). “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142.
2. Analysis
{¶61} Concerning Bricher’s first contention, in accordance with his
withdrawal of the fourth assignment of error on the same issue and the Ohio
Supreme Court’s recent ruling in Hacker, 2023-Ohio-2535, his trial counsel did not
render ineffective assistance of counsel. Addressing his second contention, in
accordance with our assessment of the third assignment of error on the same issue,
his trial counsel did not render ineffective assistance of counsel. Bricher has not
shown any prejudice as a result of counsel’s alleged deficient performance.
Bricher’s fifth assignment of error is overruled.
IV. CONCLUSION
{¶62} For the foregoing reasons, Bricher’s assignments of error are
overruled. Having found no error prejudicial to the appellant in the particulars
assigned and argued, we affirm the judgment of the Mercer County Court of
Common Pleas.
Judgment Affirmed
WILLAMOWSKI, P.J. and WALDICK, J., concur.
/hls
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