State v. Persohn ( 2012 )

[Cite as State v. Persohn, 2012-Ohio-6091.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 11 CO 37)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
BENJAMIN PERSOHN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 11CR45.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Robert Herron
Prosecuting Attorney
Attorney John Gamble
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Attorney Douglas King
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44413
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 21, 2012
VUKOVICH, J.
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{¶1} Defendant-appellant Benjamin Persohn appeals from the jury verdict
rendered in the Columbiana County Common Pleas Court finding him guilty of
trafficking heroin, in violation of R.C. 2925.03(A)(1). Eight arguments are raised in
this appeal. The first is whether the trial court improperly limited the examination of
prospective jurors. The second is whether there was evidence establishing that
Persohn was the perpetrator of the alleged crime. The third is whether prior bad acts
evidence was admitted at trial and whether such admission resulted in plain error.
The fourth issue is whether there was an induction of inflammatory evidence that
resulted in an unfair trial. The fifth is whether the verdict was against the manifest
weight of the evidence. The sixth is whether there was prosecutorial misconduct that
affected Persohn’s substantial rights. The seventh is whether defense counsel’s
performance constituted ineffective assistance of counsel. Lastly, Persohn argues
that even if we find all the other errors harmless, we should still reverse his conviction
based on the fact that the cumulative effect of the errors deprived him of a fair trial.
{¶2} For the reasons expressed in depth below, there is no merit with any of
Persohn’s assignments of error. Thus, the judgment of the trial court is affirmed.
Statement of the Case
{¶3} In April 2008, Persohn purportedly sold heroin to a confidential
informant, Brian McClelland, at Persohn’s residence located at 633 Riley Avenue,
East Liverpool, Columbiana County, Ohio. As a result in February 2011, Persohn
was indicted for trafficking heroin, in violation of R.C. 2925.03(A)(1), a fourth-degree
felony. Following a trial, the jury found him guilty. Sentencing occurred one month
later and Persohn received a one year sentence for the conviction. He timely
appeals from that conviction and sentence.
First Assignment of Error
{¶4} “The trial court clearly abused its discretion by placing unreasonable
restrictions on defendant/appellant’s counsel’s voir dire of venirepersons.”
{¶5} A trial court has discretion over the scope, length, and manner of voir
dire and may reasonably limit an attorney's voir dire. State v. Irwin, 184 Ohio St.3d
764, 2009-Ohio-5271, 922 N.E.2d 981, ¶ 35 citing State v. Abuzahrieh, 8th Dist. No.
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82689, 2003-Ohio-6639, 2003 WL 22922995, at ¶ 12, citing State v. Williams, 99
Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, at ¶ 46. When examining whether
the trial court abused its discretion in limiting voir dire, we look at whether the
limitation was reasonable. State v. Lundgren, 73 Ohio St.3d 474, 481, 653 N.E.2d
304 (1995).
{¶6} Persohn claims that the trial court unreasonably limited his counsel’s
inquiry of the presumption of innocence. His claim is not entirely accurate of what
occurred during voir dire. Defense counsel began its questioning by asking what the
prospective jurors’ thought the public’s perception was on whether a defendant was
innocent until proven guilty. The specific question was, “How many people,
Americans, do you think actually believe that any Defendant is innocent until proven
guilty?” Tr. 60.
{¶7} The prospective jurors answered the question and a further discussion
continued about the public’s perception. The state then objected to that line of
questioning. Tr. 62. The trial court sustained the objection and explained, “I think the
Jurors have indicated that, you know, we’re talking about generalizations. You
haven’t asked them directly whether they can keep an open mind in this case.” Tr.
63.
{¶8} Defense counsel then began asking about confidential informants,
specifically whether the jurors knew what a confidential informant was. Tr. 63-64. A
prospective juror provided a definition and the discussion continued. Defense
counsel then started to ask the prospective jurors what they believed was the public’s
general perception of confidential informants. Tr. 66. The state once again objected
and the trial court sustained the objection. Tr. 66. The trial court then instructed
defense counsel to direct his questions to what the jurors believe, not what other
people believe: “Mr. Hura, try to phrase your question where you’re asking the
individual juror what he or she believes rather than asking them to agree with the
generality of what other people may perceive or believe.” Tr. 66.
{¶9} As can be seen, the trial court did limit the questioning. However, the
limitation was reasonable. The concern in voir dire is determining what the individual
prospective juror believes, not the general perceptions of the public. The purpose of
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questioning prospective jurors is to determine whether they can render a fair and
impartial verdict. Lakewood v. Town, 106 Ohio App.3d 521, 525, 666 N.E.2d 599(8th Dist.1995), citing See State v. Duerr (1982), 8 Ohio App.3d 404, 457 N.E.2d 843(1st Dist.1982). It is not to determine whether the prospective jurors believe the
public, in general, could render a fair and impartial verdict. Thus, the discussion of
the public’s general perception is irrelevant and unnecessary, unless it effects the
perception of the individual juror..
{¶10} Consequently, for those reasons, we hold that the trial court did not
abuse its discretion in limiting the questioning in the manner it did. This assignment
of error lacks merit.
Second Assignment of Error
{¶11} “The trial court erred by failing to grant the defendant/appellant’s motion
for judgment of acquittal pursuant to Ohio Criminal Rule 29 made at the close of the
state’s case in chief.”
{¶12} Crim.R. 29(A) provides that, “[t]he court on motion of a defendant or on
its own motion, after the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the indictment, information,
or complaint, if the evidence is insufficient to sustain a conviction of such offense or
offenses.”
{¶13} An appellate court reviews a denial of a motion to acquit under Crim.R.
29 using the same standard it uses to review a sufficiency of the evidence claim.
State v. Rhodes, 7th Dist. No. 99-BA-62, 2002-Ohio-1572, at ¶ 9; State v. Carter, 72
Ohio St.3d 545, 553, 651 N.E.2d 965 (1995).
{¶14} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith (1997), 80 Ohio St.3d 89, 113,
684 N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1977). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a
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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. Smith at 113.
{¶15} As previously mentioned, Persohn was convicted of trafficking heroin in
violation of R.C. 2925.03(A), which states no person shall sell a controlled substance.
Persohn argues that there was no evidence presented that identified him as the
perpetrator of the crime.
{¶16} In order to warrant a conviction, the evidence must establish beyond a
reasonable doubt the identity of the accused as the person who actually committed
the crime. State v. Scott, 3 Ohio App.2d 239, 244, 210 N.E.2d 289 (7th Dist.1965).
Therefore, if there was no evidence that Persohn was the perpetrator of the crime,
his conviction would have to be reversed.
{¶17} The transcript indicates that Persohn was identified as the perpetrator
of the crime. McClelland, the confidential informant, identified Persohn and testified
at trial that he bought heroin from Persohn at Persohn’s home:
Q. Okay. Well, did you just provide him, Detective Weekley,
with some information or did you make some proposal to Detective
Weekley?
A. Made a proposal.
Q. Which was that –
A. Make a buy.
Q. Who was going to make a buy?
A. Me.
Q. From whom?
A. Ben Persohn.
***
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Q. Brian, at this point in time I’m going to ask you to please turn
and point to him and describe to me what he’s wearing?
A. He’s wearing a tie, shirt, blue shirt.
Mr. Gamble [Prosecutor]: Your Honor, would the record reflect
he’s identified the Defendant, Ben Persohn?
The Court: It will.
***
Q. And you walked where?
A. Ben’s house.
Q. And is that 633 Riley Avenue?
A. Yes.
Q. When you went in to Ben’s house, tell me what happened?
A. Made the buy.
Q. Okay. Tell me how it happened?
A. What do you mean?
Q. Well, you know, we weren’t there. When you walked in, tell
me what you did and what the Defendant did?
A. Just walked in, asked me [sic] how much it was. He told me.
I gave him the money. He gave me heroin and I left.
***
Q. Is there any doubt in your mind that you purchased ten unit
doses of heroin from Benjamin Persohn?
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A. No.
Tr. 265-266, 273-274, 284.
{¶18} In addition to this testimony, McClelland’s statement, which was taken
after the drug transaction occurred, was also admitted into evidence at trial. That
statement indicates that McClelland purchased drugs from “Ben” at 633 Riley
Avenue. Defendant’s Exhibit 2.
{¶19} McClelland’s identification of Persohn as the perpetrator of the crime
during trial was sufficient evidence to establish identity. The officers were not also
required to identify Persohn as the perpetrator of the crime. Consequently, this
assignment of error lacks merit.
Third Assignment of Error
{¶20} “The trial court committed plain error warranting a reversal of the
defendant/appellant’s conviction herein by permitting evidence of other crimes or acts
which were not admissible under Rule 404(B) of the Ohio Rules of Evidence and
Ohio Revised Code Section 2945.59.”
{¶21} Persohn argues that the prosecutor asked questions that elicited
answers of other bad acts that Persohn allegedly committed. Defense counsel did
not object to the questions or answers. Thus, Persohn admits that he waives all but
plain error.
{¶22} “Under plain error analysis, it must be clear from the record that an
error was committed and, except for the error, the result of the trial clearly would
have been otherwise.” State v. Bock, 16 Ohio App.3d 146, 150, 474 N.E.2d 1228(12th Dist.1984). The plain error rule should be applied with the utmost caution and
invoked only under exceptional circumstances to prevent a manifest miscarriage of
justice. State v. Cooperrider, 4 Ohio St.2d 226, 227, 212 N.E.2d 796 (1983).
{¶23} “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show he acted in conformity therewith.” Evid.R.
404(B). However, that evidence may be admissible to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Evid.R. 404(B). The list of acceptable reasons for admitting testimony of prior bad
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acts into evidence is non-exhaustive. State v. Melton, 11th Dist. No.2009–L–078,
2010–Ohio–1278, at ¶ 78. As the basic wording of the rule suggests, the key issue in
determining admissibility is whether the evidence is merely meant to show that the
defendant had acted consistent with his prior behavior, or whether its submission is
meant to prove a fact that is consequential to the case. Id.{¶24} Prior to discussing each individual allegation of alleged bad acts
testimony, it is noted that the majority of the statements Persohn directs us to look at
are taken out of context. The questions and answers when read in context discuss
the process of having a confidential informant and executing a controlled buy. Part of
Persohn’s defense was that an undercover cop should have been used. Thus, any
discussion as to why a confidential informant was used was done partly in response
to the defense. Furthermore, when discussing the use of a confidential informant and
how to perform a controlled buy, Persohn is not specifically discussed. Rather the
information is general information to help the jury understand what process was used
in this case to purchase drugs from Persohn.
{¶25} The first allegation of improper testimony concerns Detective
Downard’s testimony that the confidential informant needs familiarity with the person
selling drugs in order to be able to buy drugs. Persohn contends that the question
conveyed to the jury that McClelland, the confidential informant, had a level of
comfort with Persohn because Persohn had provided him with drugs in the past.
{¶26} At trial, Detective Downard’s testimony did contain reference to the fact
that, in general, a confidential informant needs to have some type of relationship with
the seller in order for a drug transaction to occur. Tr. 135-136. If there is no
relationship or connection, i.e. knowledge of each other, the seller will not sell to the
buyer. Tr. 135-136. Thus, that is why in most instances an undercover police officer,
who does not have a prior relationship with the seller, cannot be used for a controlled
buy. Tr. 135-136.
{¶27} This type of testimony is not other acts testimony. The testimony did
not convey to the jury that McClelland had prior dealings with Persohn and thus,
Persohn had a long history in selling drugs. In fact, Persohn and his alleged bad acts
are not even discussed during this testimony. Detective Downard’s testimony about
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a confidential informant’s established relationship with the seller is merely an
explanation of why a confidential informant is used and why there has to be a
relationship between the buyer and the seller in drug transactions. Furthermore, the
testimony only indicates that there must be a prior relationship of knowing each other,
not that the relationship must be based on previous sales. Tr. 135-136.
{¶28} The next alleged other acts evidence is Detective Downard’s testimony
that controlled buys usually start with intelligence that an individual is selling drugs.
Persohn contends that the testimony suggests to the jury that Persohn had sold
drugs at times other than the allegation made in this case.
{¶29} The testimony he directs this court to is found in the following
discussion:
Q. You mentioned a controlled buy. And that is the most
common method of conducting a drug investigation; is that right?
A. Yes, it is.
Q. Explain to the ladies and gentlemen how do you set up a
controlled buy of drugs?
A. A controlled buy will usually start with us getting the
intelligence from an informant or from an undercover officer that this
individual, certain individual is selling and that they can go make a buy
from the individual.
What we will then do is do research on this individual, locate
where they’re staying, what type of vehicle they’re traveling in, that type
of information. And then we will arrange the controlled buy. Which
usually involves a phone call or multiple phone calls in advance from
our informant to the drug dealer to set up the deal. [sic] Are you going
to be home, do you have what I need, those types of conversations.
Once that’s established, the agents that work at the task force
and myself would meet with this informant at an undivulged location, a
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secret location somewhere usually fairly close to where this individual
lives.
Tr. 136-137.
{¶30} The testimony continues for another three pages, in which Detective
Downard further explains the controlled buy process. Tr. 137-140.
{¶31} Like above, this testimony provides the jury with an explanation as to
the workings of a controlled buy. Specifically, how the officers get their information
that a person is selling drugs, an explanation of how a controlled buy is set up and an
explanation of what occurs before, during and after a controlled buy. Furthermore,
similar to the above analysis, there is no discussion that Persohn previously sold
drugs. Rather this is just general information for the jury to understand the facts of
this case and that this is a typical occurrence.
{¶32} The next two allegations of other acts evidence are also found in
Detective Downard’s testimony. He testified that it is not always possible to make a
second or third buy from a particular drug dealer because of rumors that a buyer was
a confidential informant or the dealer moves. Tr. 140-143. He also testified that the
more drugs a person buys the cheaper the unit price and gave examples of this. Tr.
140-143. Persohn argues that the inability to make a second or third buy testimony
suggested to the jury that even though only one purchase was made from Persohn,
he most likely would continue to sell drugs. As to the price of the drugs being
cheaper if more is bought, Persohn argues that this testimony suggests that he was
involved in illegal activity beyond what the evidence in the case would establish.
{¶33} Similar to the other testimony from Detective Downard that Persohn
directed us to, this testimony is not specific as to Persohn, but rather is general
testimony concerning drug buys. Furthermore, as aforementioned, it is only being
used to explain to the jury the process of a controlled buy.
{¶34} The next alleged other acts evidence is from the testimony of Brian
McClelland, the confidential informant. In his testimony he indicated that he
previously bought drugs from Persohn. The state, according to Persohn, highlighted
this fact later during the examination of McClelland restating this testimony without
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asking a question. The state also referred to the prior purchases in the closing
argument.
{¶35} McClelland’s testimony concerning his prior purchases from Persohn
was elicited through a discussion as to McClelland contacting Detective Weekley of
the Columbiana County Drug Task Force to tell Detective Weekley he could buy
heroin and how he knew where to make a buy. The testimony is as follows:
Q. Okay when you contacted Detective Weekley and told him
that you thought you could buy drugs – and did you mention heroin
specifically?
A. What?
Q. Did you mention heroin specifically to Detective Weekley?
A. Yeah.
Q. When you called him and told him that, how did you know
that you could drive to Benjamin Persohn’s house and buy heroin?
A. I got it off him before.
Q. You purchased heroin from Ben Persohn before?
A. Yeah.
Q. At his house on 633 Riley Avenue in East Liverpool?
A. Yeah.
Q. Can you estimate for me, approximately how many times you
might have purchased heroin from Persohn prior to that date that you
did the controlled buy?
A. Just a couple. Not many.
Tr. 268-269.
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{¶36} This testimony does establish that McClelland previously bought drugs
from Persohn. However, it is not being used to show that Persohn acted in
conformity with that prior act. Rather, the testimony is used to show why McClelland
stated to Detective Weekley he could purchase the drugs.
{¶37} Next, the testimony concerning the state’s alleged restatement of prior
purchases occurred during the following dialog:
Q. All right. You can return to the witness stand. You indicated
earlier that you had previously purchased heroin from Persohn three
times or so, maybe more. How did you become acquainted with him?
A. I knew his sister.
Tr. 284.
{¶38} The testimony continues with a discussion of how McClelland knew
Persohn’s sister.
{¶39} Persohn incorrectly states that the prosecution did not ask a question.
The statement made was an introduction to the question being asked about how
McClelland became acquainted with Persohn. The state did not merely restate the
testimony to highlight prior bad acts, but rather to determine how McClelland first met
Persohn. This conforms to the earlier testimony that there must be a prior
relationship with seller and buyer before the seller will sell to the buyer.
{¶40} Lastly, the closing argument does refer to the prior purchases. That
argument provides:
And then later, after Brian McClelland had been Indicted and
pleaded guilty to the offense of possession of drugs, and was granted
Intervention in Lieu of his conviction, he was on a treatment plan, if you
will, he found himself in trouble again. You heard him say that he
tested positive for marijuana. He had not been using heroin. But he
had tested positive for marijuana and found himself in the [sic] trouble
with the Court again because he violated the terms of his Community
Control, or his Intervention.
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And to provide himself some additional incentive there, or
cooperation, potential cooperation, he called Detective Weekley. And
he called him on April 2nd [sic], 2008. He said, I can buy some heroin
from the Defendant, Ben Persohn.
And how did he know that? Now, none of us could, this week,
knock on Ben Persohn’s door and buy dope from him. None of us
could. Because dope dealers like Ben Persohn would not sell to
someone like you and me. Not that there’s anything particularly
unusual about us, except for the fact that he doesn’t know us.
So why would he sell dope to Brian McClelland? Because Brian
McClelland had already bought dope from him. That’s how I know I can
buy dope says Brian McClelland. Because I bought dope off Ben
Persohn two or three times before this.
Tr. 374-375.
{¶41} This argument by the prosecutor was merely rehashing the testimony
and providing an explanation as to why McClelland could be a confidential informant.
{¶42} In all, Detective Downard’s testimony, McClelland’s testimony and the
prosecutor’s questions, statements and arguments are not being used as evidence to
show that since there were prior dealings, this dealing occurred. Instead the
testimony was elicited so the jury could have an understanding as to how a controlled
buy occurs and why McClelland could be used as a confidential informant in this
instance, i.e. a prior relationship with Persohn. The arguments made by the
prosecutor during closing arguments were merely a rehash of the explanation with
application to the facts at hand. Thus, none of the complained of testimony is
inadmissible other acts evidence; there was no error here, let alone plain error. This
assignment of error lacks merit.
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Fourth Assignment of Error
{¶43} “In the absence of overwhelming evidence of defendant/appellant’s
guilt, his conviction was based upon improper and/or inflammatory evidence such
that he was denied his right to due process and a fair trial.”
{¶44} Persohn contends that during trial the jury was bombarded with
irrelevant, improper and inadmissible evidence and comments that were offered for
the sole purpose of inflaming the passions of the jury. He contends that this violated
his due process rights and his right to a fair trial. Thus, he asserts that the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution were
violated.
{¶45} As with the third assignment of error, he directs this court to numerous
portions of the transcript. He did not object to any of the comments or testimony he
is directing this court to review. Thus, a plain error analysis also applies to this
assignment of error.
{¶46} His first four allegations deal with reference to societal drug problems,
including heroin use in Columbiana County, reference to the common usage of
controlled buys by police departments throughout the country, and reference to the
commonality of the prosecution of sellers that are busted through a controlled buy.
{¶47} Similar to the third assignment of error, Persohn is directing this court to
portions of statements made by either Detective Downard or the prosecutor and
suggesting that they imply something that they do not.
{¶48} For instance, the prosecutor does indicate that heroin is a very common
problem in Columbiana County. Tr. 117. However, that statement was made during
the opening statement to explain how McClelland became a confidential informant for
the Columbiana Drug Task Force. The prosecutor was explaining that McClelland
was addicted to heroin and got himself into trouble; he pled guilty to possession of
heroin. Tr. 117. He went through an intervention program where he got help and
was put on community control. He violated his community control by testing positive
for marijuana. Tr. 118. He contacted the task force to work as a confidential
informant so that he could potentially lessen any penalty he would receive for
violating community control. Thus, the statement was a passing remark. It was not
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being used to indicate that Persohn should be convicted because heroin is a
common community problem.
{¶49} Similarly, Detective Downard’s alleged reference to a large societal
drug problem is also a misstatement of his testimony. In the testimony that Persohn
directs this court to, Detective Downard does not use the words “large societal drug
problem.” He does not even indicate that there is a large societal drug problem.
Rather, he was asked how the task force finds people who are willing to be
confidential informants. Tr. 134. He said there are different ways. One way is
people who have or are involved in the lifestyle and want to earn money as a
confidential informant. Tr. 134. Another way is people who see it going on in their
community and just want to do it to get the illegal substance off the streets. Tr. 134.
Lastly, he explained that some do it because they are already charged with another
crime and they want a recommendation to the prosecutor on their behalf in hopes of
reducing the charges or lessening the penalty. Tr. 134-135.
{¶50} The prosecutor did make comments in the opening statement that a
controlled buy is used by every department in the country and that he has tried cases
like this many times, which makes them a little rudimentary to him. However, these
statements were not inflammatory. In explaining what a controlled buy is, the
prosecutor said it is done in every department in the United States of America. This
is not an inaccurate statement. Detective Downard even indicated in his testimony
that these types of buys are commonplace. Furthermore, this statement in no way
suggests that Persohn is guilty or that he should be found guilty.
{¶51} Next, Persohn complains about the prosecutor’s comment during
opening statement that the case is “a little rudimentary.” The statement in its entirety
is:
That’s the evidence. It’s pretty simple. And it’s pretty
straightforward. Now, I’ve done this a lot of times. But it’s important.
This is a little rudimentary. This isn’t a complicated case. It’s not going
to take a week to prove. But we’ve place this burden of proof upon
ourselves because it’s important.
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Tr. 123.
{¶52} Clearly when read in its context, the prosecutor is emphasizing that
although it is rudimentary, the facts are straightforward and the burden is on him, as
the state, to prove that the crime occurred. Consequently, nothing in the statement is
inflammatory, irrelevant or improper.
{¶53} The next two alleged improper comments were discussed in the third
assignment of error. They are: 1) Detective Downard’s testimony that the confidential
informant needs to have familiarity with the seller, and 2) Detective Downard’s
testimony that a controlled buy starts with intelligence that an individual is selling
drugs.
{¶54} No new arguments concerning these statements are made under this
assignment of error. Thus, the previous analysis that the testimony was not improper
equally applies to this assignment of error.
{¶55} The next alleged inflammatory and irrelevant testimony is Detective
Downard’s statement that drug dealers have robbed people before. Persohn
contends that this was an indication that he is a dangerous individual.
{¶56} Detective Downard does make this statement. However, at the time he
made it he was discussing what occurs during a controlled buy and how the task
force ensures that the confidential informant is safe. The testimony is as follows:
And then we will equip them [confidential informant] with some
type of recording or transmitting device. That can be, at minimum it’s
an audio device where it will record the conversations that the informant
has with the drug dealers so we can hear what’s going on. It also
transmits so we can actually hear real time where officers are
strategically placed around where this deal is supposed to take place.
So they can hear what’s going on in case the deal goes bad.
You know we have had – these are drug dealers. They have
robbed people before. So we take that precaution, make sure our
informant is safe. We will send our informant to the house, listen to
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what’s going on, let the deal take place. The informant will then take
the purchased narcotics, leave that house and return to us.
Tr. 139-140.
{¶57} This is not an indication that Persohn is a dangerous person. Rather it
is an indication of how the officers keep the confidential informant safe. There is an
illegal activity occurring and with any illegal activity there is a potential for individuals
to get hurt, including the officers and the confidential informant.
{¶58} The next two alleged improper comments were discussed in the third
assignment of error. They are: 1) Detective Downard’s testimony that the Drug Task
Force is not always able to make a second or third buy from a particular seller, and 2)
Detective Downard’s testimony that the more drugs an individual buys the lower the
price is for a unit dose.
{¶59} No new arguments concerning these statements are presented under
this assignment of error. Thus, the analysis under the third assignment of error
finding that these statements were not improper equally applies here.
{¶60} The next alleged inflammatory, improper and/or irrelevant testimony is
Detective Downard’s “seventeen (17) pages [of testimony] regarding what drug
dealers in Columbiana County normally do and whether or not drug dealers are
dangerous people” and his testimony about the drug epidemic in Columbiana
County. This alleged testimony occurred before a single question was asked
regarding the specific allegations against Persohn.
{¶61} There are multiple pages of testimony concerning whether an
undercover police officer can be used in most situations to perform buys, if a
confidential informant can be used to perform a controlled buy and what occurs
during a controlled buy with a confidential informant. As explained under the third
assignment of error, this testimony was laying a foundation for the jury of what occurs
during a controlled buy with a confidential informant and why a confidential informant
needs to have a relationship with the buyer in order for the controlled buy to work.
This is not irrelevant information; the jury needs it to understand the facts of the case
and what occurred. Admittedly, the prosecutor could have somehow mixed this
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information in with questions concerning the actual facts of this case. However,
laying it out first was not inflammatory or improper.
{¶62} The next allegation is that Detective Downard improperly testified to a
hearsay identification of Persohn. Detective Downard was asked whether he was
able to hear the transmission of the drug deal while he was in his car doing
surveillance. Tr. 151. He responded that he was. Tr. 151. He was then asked to
describe the nature of the conversation. Tr. 151. He responded, “I recall from the
audio that he [McClelland] had, he walked up to the residence on Riley, I believe
knocked at the door, was let inside and started speaking with the gentlemen who he
later said was Ben Persohn.” Tr. 151. Persohn claims this statement is hearsay
identification.
{¶63} Hearsay is defined in Evid.R. 801 as “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Evid.R. 802 governs the admissibility of hearsay
evidence and indicates that hearsay is inadmissible in the absence of an exception.
{¶64} Detective Downard’s testimony does constitute hearsay identification;
the testimony is being offered for the truth of the matter asserted, i.e. that Persohn
was the seller. The audio does not identify Persohn and Detective Downard later
admits that he did not see the buy happen. Thus, Detective Downard’s knowledge
that Persohn was the seller solely comes from McClelland. That said, there is no
harm in this identification. As explained under the second assignment of error,
McClelland testified and identified Persohn during that testimony as the person who
sold him heroin at the Riley Avenue residence. Thus, while Detective Downard
should not have stated that McClelland later said it was Ben Persohn who sold him
drugs, when considering the other evidence of identification, this was harmless.
{¶65} The next allegation is Detective Downard’s testimony that McClelland
made arrangements to purchase drugs from Persohn in the future. Detective
Downard did testify to that, however, he was testifying as to what he heard during the
drug transaction. The recording of the transaction was played for the jury and is an
exhibit that is available for this court to review. Detective Downard’s testimony is
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accurate as to what can be heard on the recording. Thus, there is nothing improper
regarding the testimony.
{¶66} The next alleged improper/inflammatory testimony is Detective
Downard’s alleged testimony about whether or not the confidential informant was
telling the truth about what occurred inside 633 Riley Avenue.
{¶67} On direct examination, Detective Downard was asked and testified
about what he heard during the audio of the drug transaction. On cross-examination,
defense counsel asked questions concerning whether Persohn was really the drug
seller and if they had any evidence, other than the confidential informant, that
identified Persohn as the seller. For instance, Detective Downard was asked
whether Persohn was identified on the audio, which he was not. Tr. 169. Detective
Downard was asked whether he could see 633 Riley Avenue when he was doing
surveillance. He stated that he could not. Tr. 165. On redirect examination, the
following colloquy occurred:
Q. Earlier you testified that you can hear the conversation about
a bun, how much do you want for the bun [a unit of heroin]. When Mr.
Hura played that for you, did you hear Brian McClelland ask the person,
who’s described to you as Ben Persohn, how much he wanted for the
bun?
A. Yes, I did.
Q. And did you hear right after that conversation about money,
the comment ended with 50, something 50?
A. Yes.
Q. Okay. Does that confirm for you the information that
McClelland provided you later about what had taken place inside the
residence of 633 Riley Avenue?
A. Yes, it does.
Tr. 172.
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{¶68} Persohn implies that Detective Downard’s testimony was an attempt to
bolster McClelland’s credibility. Generally, the opinion of a witness as to whether
another witness is being truthful is inadmissible. State v. Boston, 46 Ohio St.3d 108,
128, 545 N.E.2d 1220 (1989) (overruled on other grounds). It is undisputed that a
police officer may not testify as to a witness's veracity. State v. Black, 8th Dist. No.
92806, 2010–Ohio–660, at ¶ 31, citing State v. Davis, 116 Ohio St.3d 404, 2008–
Ohio–2, 880 N.E.2d 31, ¶ 122. In our system of justice, it is the factfinder, not the
expert or lay witness, who bears the burden of assessing the credibility or veracity of
a witness. State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988).
{¶69} This testimony is not bolstering the credibility of McClelland, but is
merely a statement as to what the evidence demonstrates to him, which is that a drug
transaction occurred inside the Riley Avenue residence. As aforementioned, the line
of questioning was asked because the defense was highlighting the fact that there
was no video and Detective Downard did not see what occurred. The defense was
questioning why Detective Downard reached the conclusion that a drug transaction
occurred. Detective Downard’s testimony was merely stating it was based on his
experience in controlled buys and what he heard on the audio.
{¶70} The next alleged improper testimony came from Detective Weekley, an
officer with the Columbiana County Drug Task Force. Persohn claims it was
improper for Detective Weekley to testify that Persohn sold heroin to a Rick
Dalrymple and that Dalrymple died of an overdose.
{¶71} Prior to Detective Weekley’s testimony Detective Downard testified.
During Detective Downard’s testimony he was asked whether McClelland was the
first person to indicate that Persohn was selling drugs. He said he was not sure, but
he thought so. During Detective Weekley’s testimony he was asked how he became
involved in the drug transaction that occurred between McClelland and Persohn. He
explained that initially he had an informant, Leonard DeSarro, advise him of a white
male named Ben transporting heroin into Wellsville to a known drug addict named
Rick Dalrymple. Tr. 200. Detective Weekley asked DeSarro if he could make a buy.
DeSarro said no because he had never dealt with Ben; he just knew where
Dalrymple was getting the heroin. Tr. 201. Months later another informant,
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McClelland, came forward and said he could buy heroin off of Ben Persohn. Tr. 201-
203. Detective Weekley explained that McClelland’s information matched up with
what DeSarro had told him. Tr. 201. Detective Weekley was then asked if he was
able to enlist Dalrymple to help in providing information about Persohn. Tr. 202. He
responded no, Dalrymple would not cooperate and later he died of a drug overdose.
Tr. 202.
{¶72} This information was not inflammatory. It does not insinuate that
Persohn sold Dalrymple the drugs he overdosed on. Rather it shows that the
information from informants concerning Persohn was similar and that is how the Drug
Task Force became involved in trying to set up a controlled buy from Persohn. It also
shows why the Drug Task Force was investigating Persohn and why there was only
one informant.
{¶73} The next two allegations were previously discussed in the third
assignment of error. They are: 1) McClelland’s testimony that he purchased drugs
from Persohn, and 2) that McClelland knew Persohn from Persohn’s sister. This
assignment of error expands upon the argument that was previously made
concerning Persohn’s sister. The testimony about Persohn’s sister concerned how
McClelland became friends with her. Tr. 284. He explained that she worked across
the river at “Fantasies or one of them places.” Tr. 284. She was an entertainer
there. Tr. 284.
{¶74} This testimony is not inflammatory. While it is irrelevant where she
worked and what she did, this does not impact Persohn. The testimony does not
concern him and does not suggest in any way that he is guilty because his sister is
an entertainer at a club. Furthermore, the testimony in no way suggests that she was
doing any illegal activity at the club. Thus, the testimony does not amount to plain
error.
{¶75} Next, Persohn contends that the prosecutor ridiculed his attorney’s
theory of the case that there was insufficient evidence to prove that Persohn was the
one who sold the drugs. The alleged ridicule occurred during Detective Hedrick’s
testimony; Detective Hedrick was one of the officers for the Drug Task Force that was
doing surveillance during the controlled buy. During his cross-examination defense
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counsel asked whether there was any video or photographs of the drug buy. Tr. 316-
318. The officer stated there was not. The officer was then asked whether the best
evidence would be video and photographs and if the task force has the equipment to
do that. Tr. 319. Detective Hedrick responded that it would be the best evidence
and they do have equipment to have video recordings and photographs. Tr. 319.
{¶76} Upon redirect examination, the following colloquy occurred between the
prosecutor and Detective Hedrick:
Q. And again, Detective Hedrick, where you were, and as you
testified, by virtue of the location of Defendant’s residence, 633 Riley
Avenue, were you able to take the photographs that Mr. Hura [defense
counsel] so desperately wanted you to take?
A. No.
Tr. 319.
{¶77} While the last phrase of the question could have been omitted, the
question does not ridicule the theory. Rather, after there had been multiple pages of
questions concerning the lack of pictures and video, the prosecutor was asking if
pictures and video were a possibility in this case. This question was not so improper
as to deprive Persohn of a fair trial.
{¶78} The remainder of the alleged improper statements concern the
prosecutor’s closing argument. In 1 1/2 pages of argument, Persohn directs this
court to multiple statements in the closing argument that he suggests are improper
and were used to inflame the jury.
{¶79} In general, prosecutors are given considerable latitude in opening
statements and closing arguments. State v. Ballew, 76 Ohio St.3d 244, 255, 667
N.E.2d 369 (1996). Additionally, both parties are entitled to latitude in responding to
the arguments made by opposing counsel, therefore a prosecutor is entitled to rebut
statements made by defense counsel in closing arguments. State v. Isreal, 12th Dist.
No. CA2010–07–170, 2011–Ohio–1474, ¶ 62. In closing argument, a prosecutor
may comment on “‘what the evidence has shown and what reasonable inferences
may be drawn therefrom.’“ State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293-23-
(1990), quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970).
However, a prosecutor may not express his personal belief or opinion as to the
credibility of a witness, the guilt of an accused, or allude to matters that are not
supported by admissible evidence. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d
883 (1984). In determining the impact of the alleged improper remarks, the closing
argument must be reviewed in its entirety. State v. Treesh, 90 Ohio St.3d 460, 466,
739 N.E.2d 749 (2001); State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068(1996).
{¶80} Almost all of the statements that he directs this court to are taken out of
context. For instance, he first claims that the prosecutor told the jury that Persohn
did not take responsibility for his actions and now it was their duty to force him to take
responsibility. Those were not the prosecutor’s words. The prosecutor was merely
stating that the trial process is about taking responsibility for one’s actions. Tr. 371-
371.
{¶81} Next, he claims that the prosecutor commented on Persohn’s alleged
previous drug sales. For instances, he asserts that the prosecutor stated that
Dalrymple bought drugs from Persohn and it was because of those dealings that
Dalrymple overdosed. He also directs this court to the prosecutor’s comments
regarding McClelland’s testimony that he had previously purchased drugs from
Persohn.
{¶82} Admittedly, the prosecutor does discuss these previous purchases, but
he did so in the context of what the evidence showed. The alleged previous drug
sales were confirmation that the two informants information matched and that this
combined information is what lead to the controlled buy between McClelland and
Persohn. Tr. 373-375. The prosecutor did not insinuate that Persohn sold Dalrymple
the drugs that killed him. Rather the prosecutor was explaining why Dalrymple could
not provide information that confirmed McClelland and DeSarro’s information. Tr.
373.
{¶83} Persohn also claims that the prosecutor suggested to the jury that
Persohn might hurt McClelland because he was a confidential informant and that the
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officers’ testimony could be believed because they have a great deal of experience in
these cases.
{¶84} These arguments are both inaccurate of what was said during the
closing argument. The prosecutor discussed what the evidence was that lead up to
this controlled buy and why McClelland was nervous to testify. McClelland testified
he was nervous to testify and he was nervous wearing the wire. Detective Downard
testified that he previously wore wires and that when you do that you are more
nervous because you do not know what will happen if the seller catches you with the
wire on. Furthermore, the statements made as to what the evidence showed were
made in reference to the defense’s theory that there should have been either
photographs or video of the drug transaction or an undercover agent could have
been used. The prosecutor was merely commenting that only having audio of a
controlled buy with a confidential informant is not atypical and the officers confirmed
that in their testimony.
{¶85} The next three instances deal with comments that the prosecutor made
about defense counsel and the defense. The first is that the prosecutor said he was
“flip” about the defense.
{¶86} This is not a completely accurate account of the prosecutor’s
comments. The prosecutor’s comments, in context, are as follows:
Now, we talked about it in voir dire. You know, I would like to,
you know, best-case scenario, I would like to have an Anglican Bishop
be my witness that says, I went over and knocked on Ben Persohn’s
door at Riley Avenue, “knock, knock, knock,” hello, Ben Persohn at
Riley Avenue, 633 Riley Avenue. I’m here to buy heroin from you. I
prefer to buy ten unit doses apparently for the sum of $150 in United
States currency; do we have a deal?
Well, I sound flip about it. But that’s really what Mr. Hura’s
defense in this case is. That’s what he thinks you should hear.
Tr. 375-376.
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{¶87} This statement is not inflammatory. It is merely a comment that he was
being flippant in his example of the ideal witness and what the perfect drug deal
would be for prosecution.
{¶88} The next allegation is that the prosecutor stated, “Mr. Hura has
perpetrated a fraud upon you.” Tr. 412.
{¶89} The prosecutor did say that defense counsel “perpetuated a fraud” on
the jury, but in the context that he said it, it was not improper. Tr. 412. Defense
counsel was using a metaphor to show why he believed that Persohn should be
found not guilty. The metaphor was his grandmother’s cheesecake and one time she
made it, she forgot an ingredient and it was bad. Defense counsel claimed there is a
missing ingredient in this case, which is an identification of Persohn as the drug
seller. In response to that argument, the prosecutor stated:
Mr. Hura has perpetuated a fraud upon you by use of a
misplaced metaphor. One thing I know about his grandma’s
cheesecake — and I’ll have to take this word for how good it is. But
one thing I can tell you about the cheesecake that she supposedly
made, even if that story was true, is this: It was cheesecake. It wasn’t
carrot cake; it wasn’t a bundt cake. It wasn’t some kind of German
chocolate cheesecake. It was cheesecake.
But that’s not why it’s a misplaced metaphor. The reason it’s a
misplaced metaphor is because he wants you to think there’s a missing
ingredient. When in fact what he’s saying to you is, you can’t rely on
the recipe. You need more ingredients. That’s what he’s telling you.
And he’s right. We were very careful to explain to you why the Drug
Task Force does what it does; why the police officers investigate drugs
cases the way they do. So that [sic] why? You can rely on them.
He made a – and I expected the defense was going to do just
this: You can’t rely upon Brian McClelland; you can’t rely on him.
Tr. 412-414.
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{¶90} The prosecutor also allegedly commented that defense counsel has
stooped low during the trial and “shame on him.” Similar to the above comments, this
comment is not discussed in the context that it was given. The argument, in context,
is as follows:
Mr. Hura has stooped so low in the course of this trial as to
suggest to you that the witnesses came forward and colluded their
testimony, somehow over lunch.
Suggest to you that it wasn’t Brian McClelland who said this, that
it was Lenny DeSarro. Shame on him for saying that. Shame on him
for disparaging the testimony of these officers.
Tr. 417.
{¶91} Counsel is afforded wide latitude during closing arguments. Pang v.
Minch, 53 Ohio St.3d 186, 194, 559 N.E.2d 1313 (1990). Moreover, counsel’s
closing argument must be read in its entirety, and the contested statement must be
read in context. See, e.g., State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068(1996). In its context, the prosecutor was merely discussing why the defense does
not work given the facts. Furthermore, when the closing is read in its entirety, the
comment does not rise to the level of misconduct.
{¶92} Lastly, Persohn asserts that defense counsel told the jury what the
verdict should be. He even contends that the prosecutor stated, “Deliberate like
good citizens that you are and you should find the Defendant guilty.”
{¶93} The prosecutor did not make the statement that is quoted above. What
the prosecutor did say was:
Think about the case. I invite you to do that. You should do that.
You should listen to the Judge’s instructions of law and deliberate like
the good citizens that you are.
But in doing so, don’t make this job more complicated or more
confusing or difficult than it is really is. You all brought with you in here
all of the necessary tools to allow you to do your job.
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And number one is common sense. You’ve got to use your
common sense. The Judge will tell you that. Use your common sense.
But don’t make this job look [sic] difficult than it really is. All right?
Tr. 391-391.
{¶94} This was not improper. This comment does not discuss whether
Persohn should be found guilty.
{¶95} That said, it is true that at the end of his closing argument, the
prosecutor does instruct the jury to find Persohn guilty:
I told you a few minutes ago, Ladies and Gentlemen, that I was
going to stand back up here and tell you what your verdict should be.
And I’m going to say it right now: This Defendant should be found
guilty. You should find this Defendant guilty of the offense for which
he’s charged, trafficking in ten unit doses of heroin in Columbiana
County, on Riley Avenue on April 2nd, [sic] 2008.
Tr. 417-418.
{¶96} As mentioned above, the prosecutor is not permitted to express his or
her personal opinion as to the guilt of the accused. Smith, 14 Ohio St.3d 13, 14, 470
N.E.2d 883. Stating that the defendant should be found guilty is an expression of the
prosecutor’s opinion. A better way to word this statement is to ask the jury to find the
accused guilty.
{¶97} That said, while the statement is improper, when we consider the
closing argument in its entirety, we cannot find that the result of the trial would have
been different. Or in other words, the impact of this one improper statement in the
closing argument does not result in an unfair trial.
{¶98} In all, the majority of the statements and testimony that Persohn
directs this court to are not inflammatory or improper. That said, as is discussed
above three of the complained of comments were improper and should not have
been made. These comments, however, result in harmless error; the comments did
not result in an unfair trial. This assignment of error is without merit.
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Fifth Assignment of Error
{¶99} “Defendant/appellant’s conviction is against the manifest weight of the
evidence.”
{¶100} In determining whether a verdict is against the manifest weight of the
evidence, a court of appeals must review the entire record, weigh the evidence and
all reasonable inferences, and determine whether, in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541. “Weight of the evidence concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other.’“ Id. A conviction will only be reversed as
against the manifest weight of the evidence in exceptional circumstances. Id. at 387.
This is so because the trier of fact is in a better position to determine credibility
issues, since he personally viewed the demeanor, voice inflections and gestures of
the witnesses. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068; State v. DeHass, 10
Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶101} At trial, Detective Weekley from the Columbiana County Drug Task
Force testified that he received information from an informant, Leonard DeSarro, that
a white male named Ben was transporting heroin into Wellsville and selling to a
known drug addict name Rick Dalrymple. Tr. 200-202. DeSarro could not perform a
controlled buy because he had never dealt with this seller. Tr. 200-201. Dalrymple
would not cooperate with the officer to perform a controlled buy. Tr. 202. A couple
months later McClelland contacted Detective Weekley and informed him that he
could buy off of Ben Persohn who lived on Riley Avenue. Tr. 201. The information
McClelland and DeSarro’s provided to Detective Weekley matched. Tr. 201.
Therefore, the Drug Task Force attempted to initiate a controlled buy using
McClelland as the buyer.
{¶102} McClelland indicated that he contacted Detective Weekley because
he violated his probation and he was hoping if he helped the officers he would get a
favorable recommendation from them that would help lessen his penalty. Tr. 260-
261. He explained that although he performed the controlled buy, he still spent a
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year in jail for his probation violation. Tr. 261. During his testimony he explained that
he has been clean from heroin for two years. Tr. 263. McClelland explained that
when he contacted Detective Weekley he proposed that he could do a controlled buy
off of Persohn. Tr. 265. He explained that he called Persohn to set up the buy, that
he was searched prior to the buy, a wire was placed on his person and Detective
Skidmore, of the Columbiana County Drug Task Force, dropped him off down the
street from the Persohn’s house. Tr. 266-274. The buy occurred at Persohn’s house
on 633 Riley Avenue in East Liverpool. Tr. 268. After the buy, he walked back to the
car Detective Skidmore was driving and was transported to a safe location where he
was searched and gave a statement. Tr. 274-275. The wire that he wore during the
buy allowed the officers who were doing surveillance of Persohn’s house to hear
what was occurring in the house. That audio was also recorded. The recording of
the buy was admitted into evidence and was played for McClelland during his
testimony. During the playing of the audio, he explained what was occurring. Tr. 276-
284. He identified Persohn’s voice on the recording, but admitted that he did not say
Persohn’s name or indicate the address of the residence where the buy was
occurring. Tr. 279, 291, 299. However, McClelland testified that he purchased the
heroin from Persohn and identified Persohn during the trial. Tr. 266, 284. The
statement that he made to the officers after the buy occurred also indicated that he
purchased heroin from “Ben” at 633 Riley Avenue.
{¶103} During the trial, the defense drew a lot of attention to the fact that
Persohn was not identified on the audio recording, the house was not identified, and
that none of the officers that were doing surveillance of the house saw Persohn sell
McClelland the drugs or even saw McClelland enter the house located at 633 Riley
Avenue. The prosecution attempted to explain why these things were not done
through the testimony of the officers.
{¶104} Detective Downard, director of the Drug Task Force, gave a general
overview of how a controlled buy is performed and explained what he heard on the
audio during the drug transaction. He testified that from everything he heard and
was told by McClelland he thought a drug buy occurred between McClelland and
Persohn. Tr. 172. He also testified that drug dealers are often quiet during the deals
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and do not want to say too much because they do not want to be identified. Tr. 145,
171. He explained that because of the fear of identification a lot of street names,
slang and/or very little conversation occurs during the drug deal. Tr. 146.
{¶105} Detective Weekley stated that he was part of the surveillance team
that was set up around Persohn’s house. Tr. 209. He explained that they did
surveillance to make sure they could hear what was going on and to protect the
informant. Tr. 209. However, in doing the surveillance he was not actually able to
see the house. Tr. 210, 223.
{¶106} Detective Hedrick of the Columbiana County Drug Task Force was
also doing surveillance. Tr. 306. He explained that where the house sits, on a
hillside and a curve in the road, it is hard to survey. Tr. 307. He explained that he
was only able to make a couple passes by because if he made any more it would
look suspicious. Tr. 307. He explained that because of the location they were not
able to see McClelland enter the house or take photos of him entering the house. Tr.
319. The defense did not call any witnesses.
{¶107} The majority of McClelland’s testimony is backed up by the officers
that were involved in the surveillance of the drug transaction. That said, McClelland
was the only individual who could identify Persohn as the seller. Thus, this is a
credibility question that is best resolved by the trier of fact. Given the testimony we
cannot find that the jury clearly lost its way when it believed McClelland’s statement
that Persohn sold him heroin at 633 Riley Avenue in East Liverpool, Ohio. Thus, the
verdict is not against the manifest weight of the evidence. This assignment of error
lacks merit.
Sixth Assignment of Error
{¶108} “Defendant/appellant was denied a fair trial and therefore due process
because of prosecutorial misconduct.”
{¶109} In reviewing allegations of prosecutorial misconduct, the test is
whether the conduct is improper and whether the conduct prejudicially affected the
substantial rights of the accused. State v. Guade, 10th Dist. No. 11 AP–718, 2012–
Ohio–1423, ¶ 20, citing State v. White, 82 Ohio St.3d 16, 22, 1998–Ohio–363, 693
N.E.2d 772. “‘[T]he touchstone of due process analysis in cases of alleged
-31-
prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.’“ (Citation omitted.) State v. Wilkerson, 10th Dist. No. 01 A. P1127, 2002–
Ohio–5416, ¶ 38. Therefore, prosecutorial misconduct will not be grounds for reversal
unless the accused has been denied a fair trial. State v. Maurer, 15 Ohio St.3d 239,
266, 473 N.E.2d 768 (1984).
{¶110} At the outset it is noted that counsel did not object to any instances of
the alleged prosecutorial misconduct. Thus, Persohn has forfeited all but plain error.
State v. Williams, 79 Ohio St.3d 1, 12 (1997). Reversal for prosecutorial misconduct
is warranted under the plain error standard if it is clear that the accused would not
have been convicted without the improper conduct. State v. Saleh, 10th Dist. No.
07AP–431, 2009–Ohio–1542, ¶ 68.
{¶111} Persohn begins by directing this court to the following three
comments in the prosecutor’s opening statement. First, is the comment about heroin
being used in Columbiana County. The second is the alleged comment that
controlled buys are done in every police department in the country. And the third is
the prosecutor’s comment that he has tried this type of case many times.
{¶112} All three of these alleged comments were discussed in the fourth
assignment of error. As explained under that assignment of error, we must read the
opening statement in its entirety to determine the impact of the alleged improper
remarks. Treesh, 90 Ohio St.3d 460, 466, 739 N.E.2d 749. When the statements
are read in their entirety the comments do not amount to misconduct. In fact, as
explained under that assignment of error, the statements are either taken out of
context or Persohn misstates what the prosecutor actually said.
{¶113} Next, Persohn argues that prosecutorial misconduct was committed
during the direct examination of Detective Downard, Detective Weekley, McClelland
and Detective Hedrick. All of the alleged improper statements and/or questions
asserted here were previously addressed under either the third or fourth assignments
of error and we determined that they were not improper.
{¶114} Lastly, Persohn directs this court to statements that were made during
the prosecutor’s closing argument. All of the alleged improper statements were
previously raised in the fourth assignment of error. The only statement that was
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improper was the prosecutor’s statement telling the jury what the verdict should be.
However, as explained under that assignment of error, that one statement did not
deny Persohn a fair trial or alter the result of the trial.
{¶115} In conclusion, there is only one improper statement made by the
prosecutor during the trial. That statement, however, did not result in an unfair trial.
Thus, this assignment of error is meritless.
Seventh Assignment of Error
{¶116} “Defendant/appellant’s conviction must be reversed due to ineffective
assistance of counsel.”
{¶117} We review a claim of ineffective assistance of counsel under the two-
part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Under this test, a reviewing court will not find counsel's
performance ineffective unless the defendant can show his attorney's performance
fell below an objective standard of reasonable representation and that prejudice
arose from the lawyer's deficient performance. State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraph two of the syllabus.
{¶118} In evaluating the claim of deficient performance, the reviewing court
must be highly deferential to counsel's tactics. Strickland, 466 U.S. at 689. The
court should not focus on what, in hindsight, may have been a more appropriate
course of defense. See State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643(1995). There is a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 689; State v.
Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).
{¶119} Even if there is deficient performance, the defendant must also
establish prejudice. To show prejudice, a defendant must prove that, but for his
lawyer's errors, a reasonable probability exists that the result of the proceedings
would have been different. Bradley at paragraph three of the syllabus. To establish
that reasonable probability, the facts must be sufficient to undermine a court's
confidence in the outcome. Strickland at 694.
{¶120} The first allegation is that counsel’s performance was deficient
because counsel did not object to Detective Downard’s hearsay identification of
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Persohn. He contends that since the confidential informant made no identification of
Persohn, it is unlikely he would have been convicted without Detective Downard’s
hearsay identification.
{¶121} As explained under the second assignment of error, at trial
McClelland, the confidential informant, did identify and indicate that Persohn sold him
heroin at the residence located at 633 Riley Avenue on the date in question.
Furthermore, his statement was admitted into evidence. The statement was taken on
the date of the drug transaction, but after it occurred. That statement indicates that
he purchased drugs from a person named Ben at 633 Riley Avenue. When that
statement is taken in conjunction with the rest of the evidence, it cannot be deemed
that the outcome of the trial would have been different if the hearsay identification
had been objected to and sustained.
{¶122} The next argument concerning deficient performance is that counsel
did not object to other acts evidence. As established under the third assignment of
error, none of the complained of testimony is inadmissible other acts evidence. Thus,
there was no error. Therefore, defense counsel’s failure to object does not amount to
deficient performance.
{¶123} The last argument concerning ineffective assistance of counsel was
the failure to object to prosecutorial misconduct. As indicated in the fourth and sixth
assignments of error, there is one instance during the closing argument that
constitutes prosecutorial misconduct. However, as explained in those assignments
of error that instance does not taint the entire trial and render it unfair. Or in other
words, the outcome of the trial would not have been different. Thus, there was no
prejudicial effect and counsel’s performance was not ineffective.
{¶124} In conclusion, while counsel should have objected in a few instances,
we cannot conclude that Persohn was prejudiced by counsel’s failure to object.
Thus, counsel’s performance was not ineffective. This assignment of error lacks
merit.
Eighth Assignment of Error
{¶125} “Defendant/appellant was denied his right to a fair trial pursuant to the
doctrine of cumulative error.”
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{¶126} In this assignment of error, Persohn contends that the cumulative
effect of the errors raised in his first seven assignments of error deprived him of a fair
trial.
{¶127} An appellate court may reverse a defendant's conviction based on the
doctrine of cumulative error. Cumulative error occurs when errors deemed
separately harmless deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d
191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
{¶128} As discussed above, there are three errors. They are: 1) the hearsay
identification; 2) irrelevant testimony about what Persohn’s sister did for a living; and,
3) one statement by the prosecutor in closing argument that probably should not
have been made (telling the jury what its verdict should be). For many of the reasons
espoused in the above assignments of error, even when considering these three
errors together it did not result in an unfair trial. Consequently, this assignment of
error lacks merit.
Conclusion
{¶129} For the foregoing reasons, there is not merit with any of the eight
assignments of error. Therefore, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.