State v. Clark , 2023 Ohio 4434 ( 2023 )

[Cite as State v. Clark, 2023-Ohio-4434.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 22AP-433
v. : (C.P.C. No. 20CR-5890)
John A. Clark, Jr., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 7, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and Seth L.
Gilbert for appellee. Argued: Seth L. Gilbert.
On brief: Campbell Law, LLC, and April F. Campbell for
appellant. Argued: April F. Campbell.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Defendant-appellant, John A. Clark, Jr., appeals from the judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas, after a
jury found him guilty of one count of election falsification, and the trial court sentenced him
to 120 days in jail and 5 years of community control. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On December 16, 2020, a Franklin County Grand Jury returned a four-count
indictment charging Mr. Clark with two counts of election falsification in violation of
R.C. 3599.36, each a fifth-degree felony, and two counts of tampering with records in
violation of R.C. 2913.42, each a third-degree felony. The offenses related to financial
No. 22AP-433 2
reports submitted on July 31, 2019 and August 15, 2019 on behalf of the Columbus Clean
Energy Initiative (“CCEI”).
{¶ 3} On December 17, 2020, the Chief Prosecutor with the Columbus City
Attorney’s Office filed a notice of appearance indicating he had been appointed to serve as
a special prosecutor in this case. (Dec. 17, 2020 Notice of Appearance. See also May 9,
2022 Tr. Vol. I at 11-12.)
{¶ 4} During trial, three of CCEI’s semiannual campaign finance reports for 2019
were admitted into evidence without objection. (See May 11, 2022 Tr. Vol. III at 586-87;
State’s Exs. A, B, and C.) CCEI’s 2019 semiannual finance report filed on July 31, 2019 was
marked as State’s Exhibit A. An amended semiannual campaign finance report filed on
August 15, 2019 was marked as State’s Exhibit B. And a second amended campaign finance
report filed on October 14, 2019 was marked as State’s Exhibit C. Each of these reports
contained three forms: Form 30-A (described at trial as a summary cover sheet (May 10,
2022 Tr. Vol. II at 339)); Form 31-A (a statement of monetary contributions received by the
campaign); and Form 31-B (a statement of the campaign’s expenditures).
{¶ 5} In each of the three reports, Form 30-A showed $53,000 in monetary
contributions, while the amount of expenditures varied ($50,199 in State’s Exhibit A,
$44,977 in State’s Exhibit B, and $41,977 in State’s Exhibit C). (See State’s Exs. A, B, and
C; Tr. Vol. II at 311-24.)
{¶ 6} The data in Form 31-A varied widely across the three reports (five
contributions from five individual donors listed in State’s Exhibits A and B, and only one
contribution from Mr. Clark himself listed in State’s Exhibit C). (See id.) Relevant to Mr.
Clark’s count of conviction, Form 31-A in the amended campaign finance report filed on
August 15, 2019 (State’s Ex. B) listed the following monetary contributions:
No. 22AP-433 3
1. $10,000 from Eunice Heard on June 1, 2018
2. $10,000 from Christina Gonzaga on June 1, 2018
3. $13,000 from George Cooper on June 1, 2018
4. $10,000 from Udell Hollins on June 1, 2018
5. $10,000 from Sonia Martinez on June 1, 2018
(See State’s Ex. B at 2; Tr. Vol. II at 320-21.)
{¶ 7} Renata Ramsini, Chief Ethics Officer and Campaign Finance Administrator
for the City of Columbus, testified about her role reviewing campaign finance reports for
the city, the functions of the online filing database, and the three reports Mr. Clark
submitted on behalf of CCEI. The state did not present images of the database as it existed
in 2019 for the jury to consider. In an email to defense counsel, Ms. Ramsini explained that
she could not provide images in response to a public records request because the “system
does not give [her] the ability to take screenshots or images of previous versions of the site.”
(Ct.’s Ex. 2 at 1.) Therefore, the state had to rely on Ms. Ramsini’s testimony to establish
how a user would have experienced the database in 2019. With respect to the database in
existence in 2019, Ms. Ramsini testified that an election falsification attestation would have
appeared on-screen prior to final submission of a report. (Tr. Vol. II at 304-05.) Ms.
Ramsini acknowledged that the website has been modified since 2019 and now includes a
final checkbox with “the same language” before a filer can click to submit their report. (Tr.
Vol. II at 337.) But she unequivocally testified that users of the online database in 2019
would have seen an election falsification attestation before clicking to submit their final
reports. (Tr. Vol. II at 328-30, 339.)
No. 22AP-433 4
{¶ 8} The lead detective on this case, Detective Todd Schiff, testified about his
conversations with four1 of the individuals listed as contributors in the August 2019 report
and his review of bank accounts belonging to Mr. Clark, CCEI, and ProEnergy Ohio, LLC.
Critically, Detective Schiff testified that all of the individuals he spoke with denied having
made monetary contributions to CCEI. (See Tr. Vol. II at 396-400.) And, he noted, over
the course of the relevant time periods, none of the bank records he gathered reflected any
deposits or withdrawals corresponding with the amounts listed in State’s Exhibits A, B, and
C. (See, e.g., Tr. Vol. II at 404-08.)
{¶ 9} Mr. Clark’s attorney, Patrick Quinn, also testified at trial. Mr. Quinn
explained that while he educated Mr. Clark about the campaign finance filing requirements,
he did not have any role in filing the three reports on behalf of CCEI (Tr. Vol. II at 452, 472),
he did not have access to the campaign’s online database account (Tr. Vol. II at 470), and
he was not aware he had been designated as CCEI’s treasurer until he received a letter about
deficiencies in the campaign’s first semiannual report (Tr. Vol. II at 478-79). Mr. Quinn
testified that he did not keep financial records for the campaign and he had no personal
knowledge about the campaign’s contributions or expenditures. (Tr. Vol. II at 470, Tr. Vol.
III at 544.) He acknowledged that before Mr. Clark filed the July 2019 report, he reached
out to Mr. Quinn with a completed draft for his review. (See Defense Ex. 2.) Because he
saw no formatting errors or missing information, Mr. Quinn responded, “Hi John, these
look good to me. Let em rip.” (Id.; Tr. Vol. III at 543-44.)
{¶ 10} Eunice Heard and Sonia Martinez, who were listed as contributors in CCEI’s
July and August 2019 filings, also testified as part of the state’s case. Ms. Martinez testified
1 He was unsuccessful in his attempt to reach the fifth listed contributor—George Cooper. (Tr. Vol. II at 400.)
No. 22AP-433 5
that she and her husband volunteered for CCEI by gathering petition signatures for one day
and by validating signatures. (Tr. Vol. III at 557-58.) She testified that she never
contributed money to CCEI and only learned she was listed on the campaign’s finance
report when police officers came to speak with her as part of their investigation in this case.
(Tr. Vol. III at 557, 566.) Ms. Heard testified that she contributed a significant amount of
volunteer time to Mr. Clark’s statewide and citywide endeavors from 2015 to 2019, by
entering data, cross-referencing signatures, and managing signature gatherers while Mr.
Clark was on vacation. (Tr. Vol. III at 571-72.) But, she unequivocally asserted that she did
not keep track of her volunteer hours, she did not make any monetary contributions to
CCEI, and she was not aware she would be listed as a contributor on the campaign’s finance
report. (Tr. Vol. III at 573-75, 577.)
{¶ 11} Once the state concluded its case, Mr. Clark testified in his own defense. Mr.
Clark described his interest in clean energy and his previous attempt at getting a statewide
initiative on the ballot. (See, e.g., Tr. Vol. III at 599-603.) He then testified about CCEI
and the three relevant campaign finance reports.
{¶ 12} With respect to the first report filed on July 31, 2019, Mr. Clark explained that
he was on vacation and only learned from Mr. Quinn that he had to complete a report
shortly before the deadline. (Tr. Vol. III at 609-10.) He had never submitted a campaign
finance report, so he did the best he could to follow instructions and submit the necessary
information. (Tr. Vol. III at 610-11.) He testified that although he knew Ms. Heard, Ms.
Martinez, and the others had not contributed money, he listed them anyway because they
had contributed their time to the campaign. (Tr. Vol. III at 617-21.) He described sending
a draft of the filing to Mr. Quinn for his review and being told he could later amend the
report with more accurate information. (Tr. Vol. III at 615-16, 622.)
No. 22AP-433 6
{¶ 13} Similarly, with respect to CCEI’s August and October 2019 amended filings,
Mr. Clark admitted he knew the campaign had not yet received monetary contributions
when he submitted these reports, the five listed campaign volunteers did not contribute any
money to the campaign, and he did not contribute $53,000 to the campaign. (Tr. Vol. III
at 633, 651-53, 658, 661-62.) He also acknowledged he was the person who input the
relevant information that populated Forms 30-A, 31-A, and 31-B, and he was the person
who clicked to submit each report. (Tr. Vol. III at 613-14, 655-58, 670.)
{¶ 14} Following deliberations, the jury found Mr. Clark guilty of one count of
election falsification related to the August 15, 2019 filing and not guilty of election
falsification and tampering with records related to the July 31, 2019 filing. Upon the state’s
request, the trial court ordered that a nolle prosequi be entered as to the tampering with
records charge related to the August 15, 2019 filing. (July 18, 2022 Decision and Entry at
1.)
{¶ 15} On July 12, 2022, the trial court sentenced Mr. Clark to 120 days in jail and a
five-year period of community control. (July 18, 2022 Decision and Entry at 1-2.) Mr. Clark
timely appeals.
II. Assignments of Error
{¶ 16} Mr. Clark asserts the following four assignments of error for our review:
[I.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY PERMITTING THE CITY OF COLUMBUS, WHO WAS
THE VICTIM, TO TRY CLARK.
[II.] THE STATE’S EVIDENCE THAT CLARK COMMITTED
ELECTION FALSIFICATION WAS LEGALLY INSUFFICIENT
AS A MATTER OF LAW.
[III.] CLARK’S CONVICTIONS SHOULD BE REVERSED
BECAUSE HIS COUNSEL WAS INEFFECTIVE, RESULTING
IN PREJUDICE TO CLARK.
No. 22AP-433 7
[IV.] CLARK WAS DENIED HIS RIGHT TO A FAIR TRIAL
THROUGH CUMULATIVE ERROR.
III. Analysis
A. First Assignment of Error—Role of Special Prosecutor
{¶ 17} In his first assignment of error, Mr. Clark takes issue with the “dual role” he
believes the City of Columbus played in his case. Specifically, he claims the appointment of
a special prosecutor from the Columbus City Attorney’s Office “ ‘warped the framework
within which the trial proceeded.’ ” (Appellant’s Brief at 11-12, quoting State v.
Montgomery, 169 Ohio St.3d 84, 2022-Ohio-2211, ¶ 23.) He asserts the trial court
committed structural error by permitting a prosecutor with the Columbus City Attorney’s
Office to serve as special prosecutor in his case. For the following reasons, we disagree.
{¶ 18} Because Mr. Clark did not object to the special prosecutor’s appointment
below, he has forfeited all but plain error review of his argument. See, e.g., State v. Barnes,
94 Ohio St.3d 21, 27 (2002). Pursuant to Crim.R. 52(B), a plain error is one that affects
substantial rights and may be noticed by an appellate court although not brought to the
attention of the trial court. “To warrant reversal under plain error review, this court must
find: (1) ‘an error, i.e., a deviation from a legal rule;’ (2) the error is plain or obvious; and
(3) the error affected the outcome of the trial court proceedings.” Columbus v. Carmichael,
10th Dist. No. 22AP-306, 2023-Ohio-1386, ¶ 11, quoting Barnes at 27.
{¶ 19} In Montgomery, the Supreme Court of Ohio held that a criminal defendant’s
right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution is violated when the trial court permits an alleged victim to sit at the
prosecutor’s table throughout trial and be formally introduced to the jury as the state’s
representative. The court was concerned that this designation and location in the
No. 22AP-433 8
courtroom “risked misleading the jury into thinking that just as defense counsel represents
the defendant, the prosecuting attorney represents the alleged victim, or even more
harmful, that the alleged victim as the complaining witness and the prosecution are one
and the same.” Id. at ¶ 23. The court concluded that such a “dual role” for a victim “warp[s]
the framework within which the trial proceed[s]” and undermines a criminal defendant’s
right to a fair trial. Id. And, because this error is so pervasive and its effect on the
fundamental fairness of a trial is too difficult to gauge, the court held that it constitutes
structural error requiring reversal. Id. at ¶ 31-33.
{¶ 20} We cannot agree that the special prosecutor’s role during Mr. Clark’s trial was
akin to the facts presented in Montgomery. Critical to Montgomery’s holding was the
potential harm that comes from a jury hearing and seeing a victim in this “dual role.” But
here, regardless of whether the special prosecutor was actually playing a dual role—a point
the state contests in its brief and we need not resolve in this appeal—the jury never heard
anything about it. Mr. Gibson introduced himself to the jury as one of two attorneys
representing the state, and his employment with the City of Columbus never came up at
trial. (See Tr. Vol. I at 11-12.)
{¶ 21} Mr. Clark reads Montgomery to hold that “a prosecutor cannot represent the
interest of the complaining witness, nor vice versa.” (Emphasis sic.) (Appellant’s Brief at
13.) But as Mr. Clark acknowledges in his brief, the Montgomery court was concerned with
the impact such a dual role could have on a jury. (Appellant’s Brief at 13, quoting
Montgomery at ¶ 23.) Because Mr. Gibson’s role as prosecutor with the City Attorney’s
Office was never revealed to the jury and therefore none of the concerns associated with
Montgomery are present here, we must reject Mr. Clark’s first assignment of error.
No. 22AP-433 9
B. Second Assignment of Error—Sufficiency of the Evidence
{¶ 22} In his second assignment of error, Mr. Clark argues the state’s evidence was
legally insufficient to support his conviction for election falsification. For the following
reasons, we disagree.
1. Controlling Law and Standard of Review
{¶ 23} The issue of whether the evidence is sufficient to support a conviction as a
matter of law involves a determination of whether the state met its burden of production at
trial. See, e.g., State v. Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786, ¶ 16; State v.
Frazier, 10th Dist. No. 05AP-1323, 2007-Ohio-11, ¶ 7; State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). We do not weigh the evidence but instead determine “ ‘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.’ ”
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus. We essentially assume the state’s witnesses
testified truthfully and determine if that testimony satisfies each element of the crime.
State v. Watkins, 10th Dist. No. 16AP-142, 2016-Ohio-8272, ¶ 31, quoting State v. Hill, 10th
Dist. No. 07AP-889, 2008-Ohio-4257, ¶ 41. Thus, evidence is sufficient to support a
conviction where, if believed, that evidence would allow any rational trier of fact to conclude
that the state proved each element of the offense beyond a reasonable doubt. Frazier at ¶ 7,
citing Jenks at paragraph two of the syllabus.
{¶ 24} The jury found Mr. Clark guilty of election falsification relating to CCEI’s
August 15, 2019 amended campaign finance report. (July 18, 2022 Decision and Entry at
1.) R.C. 3599.36 defines election falsification, in relevant part, as follows:
No. 22AP-433 10
[n]o person, either orally or in writing, on oath lawfully
administered or in a statement made under penalty of election
falsification, shall knowingly state a falsehood as to a material
matter relating to an election in a proceeding before a court,
tribunal, or election official, or in a matter in relation to which
an oath or statement under penalty of election falsification is
authorized by law.
***
Every paper, card, or other document relating to any election
matter that calls for a statement to be made under penalty of
election falsification shall be accompanied by the following
statement in bold face capital letters: “Whoever commits
election falsification is guilty of a felony of the fifth degree.”
Therefore, to convict Mr. Clark of election falsification, the state had to present sufficient
evidence that Mr. Clark (1) knowingly, (2) stated a falsehood, (3) regarding a material
matter, (4) and the statement was made under penalty of election falsification.
{¶ 25} Mr. Clark concedes in his merit brief that the state’s evidence was sufficient
to demonstrate the information contained in CCEI’s August 15, 2019 report was false.
(Appellant’s Brief at 18.) Instead, Mr. Clark raises two arguments on appeal. First, he
argues the state failed to present sufficient evidence to prove the false statements in the
August 2019 report were made under penalty of election falsification. Specifically, he
claims “[i]t is clear by the statute’s language that [Mr.] Clark had to be under th[e] penalty
[of election falsification] at the time he wrote the information uploaded onto 31A and 31B—
not after the fact.” (Appellant’s Brief at 18.) And second, he asserts the evidence was
insufficient to establish that the falsehoods in his August 15, 2019 report pertained to a
“material matter.” (Id. at 20.)
{¶ 26} The state makes several arguments in response. First, the state argues that
whether an attestation was provided at all is a red herring. According to the state, because
Mr. Clark provided false information in statements governed by R.C. 3517.10(A)(4), and
No. 22AP-433 11
R.C. 3517.10 requires “statements of contributions and expenditures” be made “under
penalty of election falsification,” the state has met its burden and need not prove that an
election falsification attestation appeared on the screen when Mr. Clark input the data or
when he clicked to submit the August 2019 report. Second, the state asserts that even if
R.C. 3599.36 does, in fact, require that an attestation accompany the relevant documents,
there was sufficient evidence to establish that such attestation appeared on Form 30-A and
was visible before Mr. Clark submitted his filing. And with respect to the materiality of Mr.
Clark’s statements, the state asserts a rational trier of fact could easily have concluded the
gravity and number of falsehoods in the August 2019 report satisfied that requirement.
2. Whether the state presented sufficient evidence that Mr. Clark’s
statements were made under penalty of election falsification
{¶ 27} Pursuant to the first paragraph of R.C. 3599.36, no person shall knowingly
make a false statement as to a material matter when that statement is subject to penalty of
election falsification. Separate and apart from these elements of the offense, R.C. 3599.36
states in its third paragraph that an election falsification attestation must accompany every
“paper, card, or other document” relating to a “matter that calls for a statement to be made
under penalty of election falsification.” We cannot see how the knowledge requirement in
the statute’s first paragraph relates to the attestation requirement in the third paragraph.
Instead, the statute instructs that, to convict a person of election falsification, the state
needs to prove only that a false statement was knowingly made and the statement is one
that must be made under penalty of election falsification per some other section of the
Revised Code.
{¶ 28} The state presented sufficient evidence to establish that Mr. Clark knowingly
submitted false information regarding contributions and expenditures when he clicked to
No. 22AP-433 12
formally submit that information as part of CCEI’s amended campaign finance report. Mr.
Clark reported in CCEI’s amended campaign finance report that Ms. Heard and Ms.
Martinez contributed $10,000 to the campaign. (State’s Ex. B at 2.) However, when both
women were called to testify, they denied making monetary contributions to the campaign.
(Tr. Vol. III at 556-57, 573-75.) And, Mr. Clark, too, conceded that neither Ms. Heard nor
Ms. Martinez contributed money to the campaign, and he was aware of that fact in 2019.
(Tr. Vol. III at 633. But see Tr. Vol. III at 656-57 (despite these concessions, he denied the
information he provided was false)).
{¶ 29} But even if R.C. 3599.36 required proof that an election falsification
attestation accompanied the documents, the state presented sufficient evidence that one
did. R.C. 3599.36 states that “[e]very paper, card, or other document relating to any election
matter that calls for a statement to be made under penalty of election falsification shall be
accompanied by the following statement in bold face capital letters: ‘Whoever commits
election falsification is guilty of a felony of the fifth degree.’ ”
{¶ 30} The statute merely requires that an attestation accompany each paper or
document that calls for a statement to be made under penalty of election falsification.
Forms 30-A, 31-A, and 31-B all make up a single document—a campaign finance report.
Although the record does not establish that Mr. Clark would have seen the election
falsification attestation at the time he typed the data into the database, there is sufficient
evidence to establish that, prior to submitting the information to the government as one
campaign finance report document, Mr. Clark would have seen the attestation displayed on
the screen. Ms. Ramsini testified that in August 2019, a person using the campaign finance
database would have seen the attestation before clicking to submit a report. (See Tr. Vol. II
at 304-05, 339.) Although Ms. Ramsini also testified that the database has changed, and
No. 22AP-433 13
now includes a checkbox with the attestation language (Tr. Vol. II at 337-38), that does not
undermine her testimony that, in 2019, an attestation would have appeared onscreen
before Mr. Clark clicked to submit the first amended campaign finance report. And that is
all that would be required under this reading of R.C. 3599.36.
3. Whether the state presented sufficient evidence that Mr. Clark’s
statements pertained to a material matter
{¶ 31} Mr. Clark also argues the state failed to prove the false statements he made
in the August 2019 report related to a material matter, as is required by R.C. 3599.36. Mr.
Clark asserts that because Ms. Ramsini did not explicitly testify that these falsehoods were
significant to the “energy issue,” the state failed to present sufficient evidence to support
that element of the offense. (Appellant’s Brief at 20.)
{¶ 32} Although R.C. 3599.36 does not define “material,” it is axiomatic that “words
should be given their common, ordinary and accepted meaning unless the legislature has
clearly expressed a contrary intention.” State v. Singer, 50 Ohio St.2d 103, 108 (1977).
“Material” is defined as “having real importance or great consequences.” Merriam-
Webster.com Dictionary, Material, https://www.merriam-
webster.com/dictiuonary/material (accessed Dec. 6, 2023).
{¶ 33} Ms. Ramsini’s opinion that the falsehoods were significant was not required
to sustain Mr. Clark’s conviction. R.C. 3517.10(A) mandates the filing of “a full, true, and
itemized statement, made under penalty of election falsification, setting forth in detail the
[campaign’s] contributions and expenditures.” The state presented sufficient evidence,
including testimony from two listed contributors and Mr. Clark, that CCEI’s August 2019
amended report included numerous false statements, including: (1) the existence of
monetary contributions; (2) the amounts of those claimed monetary contributions; (3) the
No. 22AP-433 14
names of contributors who made those monetary contributions; (4) the campaign’s
expenditures; (5) the amounts of those expenditures; and (6) to whom and for what those
expenditures were made. Nearly all of the substantive information in the August 2019
report was false. For these reasons, we believe a rational trier of fact could have concluded
these falsehoods fall within the definition of “material” and therefore the state presented
sufficient evidence to meet the materiality requirement.
{¶ 34} Because the state presented sufficient evidence to support Mr. Clark’s
election falsification conviction, we overrule Mr. Clark’s second assignment of error.
C. Third Assignment of Error─Ineffective Assistance of Counsel
1. Controlling Law and Standard of Review
{¶ 35} A defendant asserting a claim of ineffective assistance of counsel must
establish (1) counsel’s performance was deficient or objectively unreasonable, as
determined by “ ‘prevailing professional norms’ ” and (2) he was prejudiced by counsel’s
deficient performance. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, ¶ 77,
quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
{¶ 36} To show that trial counsel’s performance was deficient or unreasonable, a
defendant must overcome the presumption that counsel provided competent
representation and must show counsel’s actions were not trial strategies prompted by
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical
or strategic decisions, even if unsuccessful, do not generally constitute ineffective assistance
of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained
of must amount to a substantial violation of counsel’s essential duties to his client. See
State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989).
No. 22AP-433 15
{¶ 37} Prejudice results when “ ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Bradley at 142, quoting Strickland at 694. “ ‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” Id., quoting Strickland at 694.
{¶ 38} When analyzing an ineffective assistance of counsel claim, an appellate 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.” Strickland at
697. See also State v. Wade, 10th Dist. No. 20AP-456, 2021-Ohio-4090, ¶ 19. “If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that
course should be followed.” Strickland at 697.
{¶ 39} Mr. Clark raises several arguments under this assignment of error. First, he
claims his attorney was ineffective for failing to object to the special prosecutor’s dual role
as both prosecutor and victim. Second, he asserts trial counsel was ineffective for
consistently failing to object to certain testimony under the hearsay rules, the Best Evidence
Rule, and the Confrontation Clause of the Sixth Amendment to the United States
Constitution.
2. Whether the failure to object to the special prosecutor’s role
constituted ineffective assistance of counsel
{¶ 40} As we have already noted above under Mr. Clark’s first assignment of error,
the trial court did not err in permitting an attorney from the Columbus City Attorney’s
Office to serve as special prosecutor in this case. Therefore, even had Mr. Clark’s trial
counsel raised this issue below and objected to what he views as the dual role of the
prosecutor, the objection would have been overruled. As such, we cannot say counsel’s
failure to raise the issue at trial constituted deficient performance. See State v. Issa, 93
No. 22AP-433 16
Ohio St.3d 49, 68 (2001) (“Counsel is certainly not deficient for failing to raise a meritless
issue.”).
3. Whether the failure to object under the hearsay rules, the Best
Evidence Rule, and the Confrontation Clause constituted ineffective
assistance of counsel
{¶ 41} With respect to his hearsay, Confrontation Clause, and Best Evidence Rule
claims, Mr. Clark takes issue with his trial counsel’s failure to object throughout Detective
Schiff’s testimony when he described his discussions with four of the individuals listed as
contributors in the August 2019 report and their statements denying having made
monetary contributions to CCEI. (Appellant’s Brief at 26-27.) Additionally, he takes issue
with Detective Schiff’s testimony about the contents of various bank records that were not
produced at trial, information he learned from Regus about ProEnergy Ohio LLC’s link to
Mr. Clark, information he learned from emails between Ms. Ramsini’s predecessor and Mr.
Quinn, and the contents of an article that ran in the Columbus Dispatch. (Appellant’s Brief
at 27-29.) And he takes issue with the state’s reliance on Ms. Ramsini’s testimony about
how the online filing database worked in 2019 without producing the actual database or
images of the database for the jury to view. (Appellant’s Brief at 29.)
{¶ 42} Because we cannot agree that Mr. Clark has demonstrated prejudice as to any
of the alleged errors of trial counsel, we address that prong of Strickland first. See
Strickland at 697; Wade at ¶ 19.
{¶ 43} Although Detective Schiff did testify about his conversations with four of the
five individuals listed as contributors and that may have constituted impermissible hearsay
testimony that might have implicated the Confrontation Clause, two of the listed
contributors, themselves, testified at trial. Both Ms. Heard and Ms. Martinez testified that
they did not contribute to CCEI. (Tr. Vol. III at 556-57, 573-75.) Additionally, even Mr.
No. 22AP-433 17
Clark admitted on the witness stand that none of the five listed individuals contributed
money to the campaign. (Tr. Vol. III at 633. But see Tr. Vol. III. At 656-57.) So, regardless
of whether Detective Schiff’s summary of his conversations constituted impermissible
hearsay or implicated the Confrontation Clause, we cannot say Mr. Clark suffered any
prejudice because the information necessary to convict him of fifth-degree felony election
falsification (the falsity of at least one of his statements on a material matter) came directly
from Ms. Heard, Ms. Martinez, and himself.
{¶ 44} Because the state presented overwhelming evidence regarding the falsity of
statements in CCEI’s August 2019, we also cannot say Mr. Clark was prejudiced by trial
counsel’s failure to object to Detective Schiff’s description of bank records or other
documents that were not produced at trial. Detective Schiff’s testimony about the relevant
bank records and other documents went to the falsity of the information contained in the
August 2019 report. But because Mr. Clark, himself, admitted to filing campaign finance
reports containing false statements about CCEI’s number of contributions, amounts of each
contribution, and identity of the individuals who he claimed contributed money to the
campaign, even without bank account information, the state easily presented compelling,
uncontroverted evidence that Mr. Clark made false statements about material matters in
the report.
{¶ 45} As to Mr. Clark’s Best Evidence Rule challenge regarding the state’s failure to
produce the actual database or images of the database to prove the presence of the election
falsification attestation, we have already concluded that such evidence was not required to
support his conviction. Ms. Ramsini’s testimony about the database could not have been
prejudicial because it went to something that is not an element of the offense.
No. 22AP-433 18
{¶ 46} But even if the attestation was required by the statute, and therefore Ms.
Ramsini’s testimony was necessary to support the state’s case as to one of the elements of
the offense, Mr. Clark cannot show ineffective assistance of counsel. Pursuant to Ohio’s
Best Evidence Rule, as set forth in Evid.R. 1002, “[t]o prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph is required, except
as otherwise provided in these rules or by statute.” However, the original is not required if
any of the following apply:
(1) Originals lost or destroyed.
All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bath faith; or
(2) Original not obtainable.
No original can be obtained by any available judicial
process or procedure; or
(3) Original in possession of opponent.
At a time when an original was under the control of the
party against whom offered, that party was put on notice,
by the pleadings or otherwise, that the contents would be
subject of proof at the hearing, and that party does not
produce the original at the hearing; or
(4) Collateral matters.
The writing, recording, or photograph is not closely related
to a controlling issue.
(Emphasis removed.) (Evid.R. 1004; See also State v. Voltz, 7th Dist. No. 21 JE 0020,
2022-Ohio-4351, ¶ 88.)
{¶ 47} The record below contains an email Ms. Ramsini sent in response to defense
counsel’s request for images of the 2019 version of the database. In her email, Ms. Ramsini
explained that she could not produce the requested images because the “system does not
give [her] the ability to take screenshots or images of previous versions of the site,”
including what it would have looked like for a user in 2019. (Ct.’s Ex. 2 at 1.) Therefore, the
No. 22AP-433 19
trial court would have overruled any Best Evidence Rule objection to Ms. Ramsini’s
testimony under Evid.R. 1004(2). For that reason, we cannot say counsel’s failure to raise
the issue was prejudicial to Mr. Clark’s defense.
{¶ 48} Because Mr. Clark cannot satisfy Strickland’s prejudice requirement, we
need not consider whether his trial counsel provided deficient performance. See
Strickland, 466 U.S. at 697; Wade, 2021-Ohio-4090 at ¶ 19. We therefore overrule his third
assignment of error.
D. Fourth Assignment of Error─Cumulative Error
{¶ 49} In his fourth and final assignment of error, Mr. Clark argues that even if we
conclude none of the above alleged errors is sufficient to be individually prejudicial, the
cumulative effect of these errors nonetheless resulted in Mr. Clark being denied a fair trial.
{¶ 50} Under the cumulative error doctrine, “a conviction will be reversed when the
cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of
the numerous errors does not individually constitute cause for reversal.” State v. Graham,
164 Ohio St.3d 187, 2020-Ohio-6700, ¶ 169. “To affirm a conviction in spite of multiple
errors, we must determine that the cumulative effect of the errors is harmless beyond a
reasonable doubt. The errors may be considered harmless if there is overwhelming
evidence of guilt, if [the] [a]ppellant’s substantial rights were not affected, or if there are
other indicia that the errors did not contribute to the conviction.” (Internal citation
omitted.) State v. Anderson, 7th Dist. No. 03 MA 252, 2006-Ohio-4618, ¶ 80.
{¶ 51} As noted above, the state presented strong direct evidence of Mr. Clark’s guilt.
Even without Detective Schiff’s testimony about his conversations with the five campaign
volunteers and the various bank records, Ms. Ramsini’s testimony about the database and
its display of the election falsification attestation, the Columbus Dispatch article, the Regus
No. 22AP-433 20
records, and Mr. Quinn’s emails, the state presented overwhelming evidence of Mr. Clark’s
guilt. To convict Mr. Clark of election falsification under R.C. 3599.36, the state did not
have to prove Mr. Clark acted with the intent to mislead or defraud or that he saw an
election falsification attestation before he submitted the August 2019 report. The state had
to prove only that Mr. Clark knew he made a false statement and the statement was one the
Revised Code requires be made under penalty of election falsification. The state satisfied
this burden with the August 2019 amended report, Mr. Clark’s own testimony that he
completed the report and knew the campaign did not have any monetary contributions
from the listed individuals, and the testimony of Ms. Heard and Ms. Martinez that they did
not make monetary contributions to the campaign. We therefore overrule Mr. Clark’s
fourth and final assignment of error.
IV. CONCLUSION
{¶ 52} Having overruled Mr. Clark’s four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
JAMISON and BOGGS, JJ., concur.