State v. Stapleton , 2020 Ohio 4479 ( 2020 )

[Cite as State v. Stapleton, 2020-Ohio-4479.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 19CA7
vs. :
JVON STAPLETON, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Jerry L. McHenry, Pickerington, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecuting Attorney, and Heather MJ Carter, Assistant
Pickaway County Prosecuting Attorney, Circleville, Ohio, for appellee.
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-10-20
ABELE, J.
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment of
conviction and sentence. Jvon Stapleton, defendant below and appellant herein, assigns the
following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION OF
HEARSAY EVIDENCE BY DETECTIVE MAHER. THE APPELLANT WAS
DENIED HIS RIGHT TO A FAIR TRIAL, DUE PROCESS OF LAW, HIS
RIGHT TO CONFRONT WITNESSES AND EQUAL PROTECTION OF THE
LAW WHEN THE DETECTIVE TESTIFIED AS TO HEARSAY EVIDENCE,
WHICH WAS EVIDENCE SPOKEN OR WRITTEN BY SOME OTHER
PERSON(S) WHO WERE NOT PRESENT AND WHO DID NOT TESTIFY.
THIS WAS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND
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FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
SECOND ASSIGNMENT OF ERROR:
“EVIDENCE OF THE PUTATIVE CELL PHONE, CELL PHONE
EXTRACTIONS, TEXT MESSAGES A FACEBOOK ACCOUNT, AND A
VIDEO RECORDING OF C.D. MASTURBATING WERE NOT PROPERLY
AUTHENTICATED AS TO ORIGIN AND ACCURACY. THEY WERE
IMPROPERLY ADMITTED INTO EVIDENCE AND DENIED APPELLANT
HIS RIGHTS OF CONFRONTATION OF WITNESSES, AND A FAIR TRIAL
IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE
I, SECTION 10 OF THE OHIO CONSTITUTION.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO
MULTIPLE CONSECUTIVE PRISON TERMS WHEN THOSE FELONY
COUNTS WERE ALLIED OFFENSES OF SIMILAR IMPORT, ALL
INVOLVING THE SAME ANIMUS. THIS WAS IN VIOLATION OF OHIO
REVISED CODE SECTION 2941.25. THIS WAS A VIOLATION OF
APPELLANT’S RIGHT TO BE FREE FROM DOUBLE JEOPARDY, A FAIR
TRIAL, AND DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE
LAW AS GUARANTEED HIM BY THE FIFTH, SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
FOURTH ASSIGNMENT OF ERROR:
“DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL TO THE APPELLANT BY FAILING TO OBJECT TO THE
HEARSAY EVIDENCE AND THE UNAUTHENTICATED EVIDENCE,
ALONG WITH FAILING TO OBJECT TO THE ADMISSION INTO
EVIDENCE OF SIXTY-EIGHT (68) DIFFERENT EXHIBITS, ALL OF WHICH
WERE PREDICATED UPON HEARSAY EVIDENCE OR
UNAUTHENTICATED EVIDENCE. DEFENSE COUNSEL WAS
INEFFECTIVE FOR FAILING TO OBJECT TO CONSECUTIVE SENTENCES
IMPOSED UPON APPELLANT. THIS WAS A DENIAL OF APPELLANT’S
RIGHT TO COUNSEL, A FAIR TRIAL, DUE PROCESS OF LAW AND
EQUAL PROTECTIONS OF LAW GUARANTEED HIM BY THE FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.”
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{¶ 2} On September 7, 2018, a Pickaway County grand jury returned an indictment that
charged appellant with forty-three counts arising out of his communications with a minor. Counts
one through nineteen charged appellant with pandering obscenity involving a minor, in violation
of R.C. 2907.321(A)(5). Counts twenty through thirty-eight charged appellant with illegal use of
a minor in nudity-oriented material or performance, in violation of R.C. 2907.322(A)(5). Counts
thirty-nine and forty charged appellant with pandering sexually oriented matter involving a minor.
Counts forty-one and forty-two charged appellant with disseminating matter harmful to juveniles,
in violation of R.C. 2907.31(A)(1). Count forty-three charged appellant with attempted unlawful
sexual conduct with a minor, in violation of R.C. 2923.02(A) and 2970.04(A). Appellant entered
not guilty pleas to all counts.
{¶ 3} At trial, Circleville Police Detective Dan Maher testified that he is a member of the
Franklin County Internet Crimes Against Children Task Force. Maher stated that task force
members receive specialized training involving internet crimes against children and that the
training includes cell phone forensics and procedures for analyzing and reviewing physical
evidence. Maher stated that he has received data recovery certification for cell phones. After
this initial inquiry, the trial court granted the state’s request to qualify the detective as an expert in
cell phone forensics and analysis.
{¶ 4} Detective Maher explained that on July 16, 2018, he obtained appellant’s cell phone
and “immediately put it in airplane mode.” The detective stated that placing the phone in airplane
mode would keep the phone in the same condition as when he recovered it. Maher related that,
upon viewing the cell phone, he observed a picture of a naked female who appeared to be a minor.
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He thus took the phone to the police department and docketed it into evidence. The detective also
sent a preservation request to Facebook.
{¶ 5} Detective Maher stated that he subsequently identified the minor as C.D. by taking a
screenshot of her Facebook account that he found on appellant’s cell phone. The detective
contacted another detective who lived near the minor and asked this detective to reach out to the
family. This other detective then obtained the minor’s cell phone and gave it to Maher. Maher
further explained that he spoke with the minor and confirmed that she was under the age of
eighteen and that she is the individual depicted in the photographs found on appellant’s cell phone.
Detective Maher also performed a cell phone extraction of the minor’s phone.
{¶ 6} Detective Maher indicated that when he extracted information from both appellant’s
and the minor’s phone, he used a “cellebrite device, which is the most used cellular forensic tool.”
Maher related that the device reads the cell phone data and copies it.
{¶ 7} Detective Maher stated that after he extracted the data, he performed a search and
generated a report of the conversations between appellant and the minor. The detective testified
that the conversations began on July 14, 2018, at 1:24:50 a.m., when appellant sent a message to
the minor that stated, “Hi this is Jay from Meet 24 [sic].” Maher explained that “Meet 24" is a
dating cell phone application. After appellant sent his message, the minor responded, “Hi Jay.”
The two continued to exchange messages, and appellant eventually asked the minor to “send me
some pictures please nothing bad [sic].” The conversation continued, and appellant kept pressing
the minor to send him more and more photos in various states of undress. With each request,
appellant asked the minor to expose more nudity. At first, appellant requested the minor send him
photographs showing the victim wearing undergarments. Later, he asked the victim to send him
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a photograph that shows the victim with her legs spread without undergarments. The victim also
sent appellant two videos that showed the victim masturbating. Additionally, appellant sent
photographs of himself in various states of undress, as well as close-up photographs of his penis.
All together, appellant sent the victim ten photographs of himself, either completely naked or of
his erect penis. The victim sent appellant nineteen images that either depicted her vagina, breasts,
or otherwise depicted her as nude.
{¶ 8} At the close of the evidence, the state asked the court to amend the indictment by
dismissing count forty-three, attempted unlawful sexual conduct with a minor in violation of R.C.
2923.02(A) and 2970.04(A). The court granted the motion. Subsequently, the jury found
appellant guilty of all offenses except count forty-two, one of the disseminating-matter-harmful-
to-juveniles offenses.
{¶ 9} On February 25, 2019, the trial court sentenced appellant. The court first
determined that the illegal-use-of-a-minor offenses merged with the pandering-obscenity-
involving-a-minor offenses. The court ordered appellant to serve eighteen months in prison for
each of the nineteen pandering obscenity offenses and for the two pandering sexually oriented
matter involving a minor offenses. The court sentenced appellant to twelve months in prison for
the disseminating matter harmful to juveniles offense. The court further ordered appellant to
serve all of the sentences consecutively for a total sentence of three hundred ninety months. This
appeal followed.
I
{¶ 10} Appellant’s first and second assignments of error challenge the admission of
certain evidence. For ease of discussion, we consider the assignments of error together.
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{¶ 11} In his first assignment of error, appellant argues that the trial court erred by allowing
the state to introduce inadmissible hearsay evidence at trial. Appellant contends that Detective
Maher based most of his testimony on hearsay. Appellant notes that the detective based his
testimony upon cell phone extractions, text messages, and information obtained from Facebook.
Appellant asserts that all of the digital evidence obtained from the cell phone and from Facebook
constitutes hearsay evidence, and that none of the exceptions to the hearsay rules allowed the state
to introduce the evidence at trial. Appellant additionally alleges that allowing the state to
introduce the evidence violated his right to confront the witnesses against him.
{¶ 12} In his second assignment of error, appellant contends that the state did not properly
authenticate the evidence obtained from the cell phones or from Facebook.
{¶ 13} Appellant also recognizes that trial counsel did not object to the admission of the
evidence at trial, but argues that trial counsel’s failure to object means that appellant did not receive
a fair trial.
A
{¶ 14} We first observe that Evid.R. 103(A)(1) provides that “error may not be predicated
upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”
and, “[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection, if the specific ground was not apparent from the
context.” We additionally note that appellate courts “‘“will not consider any error which counsel
for a party complaining of the trial court’s judgment could have called but did not call to the trial
court’s attention at a time when such error could have been avoided or corrected by the trial
court.”’” State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15,
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quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs,
14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. Appellate courts
nevertheless have discretion to consider forfeited issues using a plain-error analysis. E.g., Risner
v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731,
42 N.E.3d 718, ¶ 27; Quarterman at ¶ 16. Crim.R. 52(B) provides appellate courts with discretion
to correct “[p]lain errors or defects affecting substantial rights.” “To prevail under the plain-error
standard, a defendant must show that an error occurred, that it was obvious, and that it affected his
substantial rights,” i.e., the trial court’s error must have affected the outcome of the trial. State v.
Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 62, citing State v. Barnes, 94
Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “We take ‘[n]otice of plain error * * * with
the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’” Obermiller at ¶ 62, quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
“Reversal is warranted only if the outcome of the trial clearly would have been different absent
the error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001).
{¶ 15} In the case sub judice, as we explain below, even if we assume for purposes of
argument that the trial court plainly erred, the failure to notice the error will not result in a manifest
miscarriage of justice in the case sub judice.
B
{¶ 16} “‘The admission or exclusion of relevant evidence rests within the sound discretion
of the trial court.’” State v. Dean, 146 Ohio St.3d 106, 2015–Ohio–4347, 54 N.E.3d 80, ¶ 91,
quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.
Consequently, “a reviewing court should not disturb evidentiary decisions in the absence of an
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abuse of discretion that created material prejudice.” State v. Morris, 132 Ohio St.3d 337, 2012–
Ohio–2407, 972 N.E.2d 528, ¶ 14, quoting State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266,
900 N.E.2d 565, ¶ 66; accord State v. Adams, 2015–Ohio–3954, ¶ 198, 144 Ohio St.3d 429, 45
N.E.3d 127, citing State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). “An abuse of
discretion is more than a mere error of law or judgment.” State v. Thompson, 141 Ohio St.3d 254,
23 N.E.3d 1096, 2014–Ohio–4751, 23 N.E.3d 1096, ¶ 91; accord State v. Johnson, 144 Ohio St.3d
518, 2015–Ohio–4903, 45 N.E.3d 208, ¶ 75. Instead, “‘[a] trial court abuses its discretion when
it makes a decision that is unreasonable, unconscionable, or arbitrary.’” State v. Keenan, 143
Ohio St.3d 397, 2015–Ohio–2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio St.3d
343, 2013–Ohio–966, 986 N.E.2d 971, ¶ 34. An abuse of discretion includes a situation in which
a trial court did not engage in a “‘sound reasoning process.’” State v. Morris, 132 Ohio St.3d 337,
2012–Ohio–2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Moreover,
“[a]buse-of-discretion review is deferential and does not permit an appellate court to simply
substitute its judgment for that of the trial court.” Darmond at ¶ 34.
C
{¶ 17} We observe that appellant does not cite to the portions of the record where he alleges
error occurred, nor does he pinpoint the testimony or exhibits that contain the alleged inadmissible
hearsay, or the exhibits that the state allegedly failed to properly authenticate. Instead, appellant
generally asserts that the trial court should not have admitted statements, photographs, and other
information derived from his and the victim’s cell phone and from Facebook on the basis of
hearsay and improper authentication.
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{¶ 18} We point out, however, that for each assignment of error presented for review, an
appellant must identify the specific parts of the record where the alleged error occurred. See
App.R. 16(A)(3) (stating that an appellant’s brief must include “[a] statement of the assignments
of error presented for review, with reference to the place in the record where each error is
reflected”); App.R. 16(A)(7) (requiring that an appellant’s brief include “[a]n argument containing
the contentions of the appellant with respect to each assignment of error presented for review and
the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies”). “This rule is designed ‘to aid the reviewing court in
determining whether any reversible error occurred in the lower court by having the complaining
party specify the exact location(s) where such a determination can be made.’” Mayfair Village
Condominium Owners Assn. v. Grynko, 8th Dist. Cuyahoga No. 99264, 2013-Ohio-2100, 2013
WL 2291876, ¶ 6, quoting Hildreth Mfg. v. Semco, Inc., 151 Ohio App.3d 693, 2003-Ohio-741,
785 N.E.2d 774, ¶ 32 (3d Dist.).
{¶ 19} An appellate court may disregard an assignment of error when the appellant fails to
identify the relevant portions of the record upon which an assignment of error is based. See
App.R. 12(A)(2) (“The court may disregard an assignment of error presented for review if the
party raising it fails to identify in the record the error on which the assignment of error is based
* * *.”); see also Mayfair Village Condominium Owners Assn. at ¶ 6, citing Nob Hill E.
Condominium Assn. v. Grundstein, 8th Dist. Cuyahoga No. 95919, 2011-Ohio-2552, 2011 WL
2112734, ¶ 11 (stating that an appellate court is “not obliged to scour the record in search of
evidence to support an appellant’s assignment of error”).
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{¶ 20} In the case sub judice, appellant’s failure to cite to specific portions of the transcript
where error allegedly occurred, or to the exhibits that appellant believes the trial court should not
have admitted, means that this court could simply disregard appellant’s first and second
assignments of error. However, we will nevertheless attempt to ascertain whether the trial court
plainly erred, as a general matter, by allowing the state to introduce the items of evidence derived
from the cell phones and Facebook records.
D
{¶ 21} Appellant first contends that the evidence obtained from the cell phone records and
from Facebook constitutes inadmissible hearsay.
{¶ 22} “‘Hearsay’ is 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. 801(C).
Hearsay is inadmissible at trial, unless it falls under an exception to the Rules of Evidence.
Evid.R. 802; State v. Maxwell, 139 Ohio St.3d 12, 2014–Ohio–1019, 9 N.E.3d 930 (2014), ¶ 129;
State v. Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, 2019 WL 3891146, ¶ 92.
{¶ 23} Evid.R. 801(D)(2)(a) further provides that “[a] statement is not hearsay if * * * *
[t]he statement is offered against a party and is (a) the party’s own statement.”
{¶ 24} In the case sub judice, any of the cell phone and Facebook records that contain
appellant’s own statements are not hearsay under Evid.R. 801(D)(2)(a). We observe that the state
presented evidence that consisted of appellant’s own statements in the form of text messages and
images that appellant generated. Thus, because the evidence contained appellant’s own
statements, the evidence is not hearsay evidence. State v. Inkton, 8th Dist. No. 102706,
2016-Ohio-693, 60 N.E.3d 616, 2016 WL 762580, ¶¶ 89-90 (noting that defendant’s Facebook
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posts admissible as statement by party opponent); State v. Shaw, 7th Dist. Mahoning No. 12 MA
95, 2013–Ohio–5292, ¶ 43 (stating that “photographs of the text messages can be admissible as an
admission by a party-opponent under Evid.R. 801(D)(2)(a) if they are properly authenticated”).
Consequently, the trial court did not plainly err by allowing the state to introduce cell phone
records and Facebook posts that contained appellant’s own statements.
{¶ 25} To the extent the victim’s cell phone records, or any of the victim’s other electronic
messages or images, constitute hearsay, we do not believe that the trial court plainly erred by
admitting into evidence the victim’s statements or electronic images. We note that the victim sent
the statements and photographs after appellant asked the victim to send him photographs that
shows the victim in various states of undress. Appellant solicited the images, and the images were
recovered during appellant’s cell phone extraction. “Multiple courts have held that text messages
received on a defendant’s cell phone are not hearsay when the messages are not offered for the
truth of the matter asserted.” State v. Norris, 2nd Dist. No. 2015-CA-22, 2016-Ohio-5729, 76
N.E.3d 405, 2016 WL 4728447, ¶ 32, citing State v. Crocker, 2015-Ohio-2528, 38 N.E.3d 369(4th Dist.) (incriminating text messages received on the defendant’s cell phone were extracted by
a forensic computer specialist from the Ohio State Highway Patrol and the court held the messages
were not hearsay because they were not offered to prove the truth of the matter asserted, but rather
to explain the defendant’s activities and give context to the defendant’s responses). We
additionally note that “[v]erbal acts may be admitted to explain an actor’s conduct in reaction to
the statements, to show the effect on the hearer, and to show the mental state of the declarant.”
State v. Ciacchi, 8th Dist. Cuyahoga No. 92705, 2010–Ohio–1975, ¶ 20, citing State v. Williams,
38 Ohio St.3d 346, 348, 528 N.E.2d 910 (1988), fn. 4.
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{¶ 26} We further observe that appellant’s brief does not contain a complete argument that
explains the reasons why he believes that photographs, recovered from appellant’s phone that
depict the victim, constitute inadmissible hearsay. Instead, appellant generally asserts that all of
the electronic evidence constitutes hearsay and that admitting the evidence violated his right to
confront the witnesses against him. Without additional citation to authority or supporting
argument, however, we are unable to conclude that any error that the court may have arguably
made by admitting photographs that the victim sent appellant via electronic means constitutes an
obvious error.
E
{¶ 27} Appellant next asserts that the trial court should have recognized that admitting into
evidence the text messages, photographs, and other digital evidence violated his right to confront
the witnesses against him.
{¶ 28} The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses
against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),
the United States Supreme Court held that the Confrontation Clause guarantees a defendant’s right
to confront those “who ‘bear testimony’” against him. Id. at 51. The clause essentially
“guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.”
Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The clause thus
protects a defendant’s rights to “‘physically * * * face those who testify against him, and * * * to
conduct cross-examination.’” Id. at 1017, quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107
S.Ct. 989, 94 L.Ed.2d 40 (1987). A testimonial out-of-court statement of a witness who does not
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appear at trial thus is inadmissible unless the witness is unavailable and the defendant had a prior
opportunity for cross-examination. Melendez–Diaz v. Massachusetts, 557 U.S. 305, 309, 129
S.Ct. 2527, 174 L.Ed.2d 314 (2009), citing Crawford, 541 U.S. at 54.
{¶ 29} Crawford defined “testimony” as a “solemn declaration or affirmation made for the
purpose of establishing or proving some fact” and held that the Confrontation Clause applies to
those who “bear testimony.” Crawford at 51, 124 S.Ct. 1354. Although Crawford did not define
“testimonial,” it stated that the core class of statements implicated by the Confrontation Clause
includes statements made under circumstances that would lead an objective witness to reasonably
believe that the statement would be available for use at a later trial. [State v. Maxwell, 139 Ohio
St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930] at ¶ 35. Later decisions applying Crawford have
explained that “testimonial statements are those made for ‘a primary purpose of creating an
out-of-court substitute for trial testimony.’” Maxwell at ¶ 40, quoting Michigan v. Bryant, 562
U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).” State v. Tench, 156 Ohio St.3d 85,
2018-Ohio-5205, 123 N.E.3d 955, ¶ 212, reconsideration denied, 154 Ohio St.3d 1522,
2019-Ohio-769, 118 N.E.3d 259, and cert. denied, 140 S.Ct. 206, 205 L.Ed.2d 94 (2019); accord
State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 87. Thus, the
inquiry focuses on whether the primary purpose of the statement was testimonial. Ohio v. Clark,
— U.S. —, 135 S.Ct. 2174, 2180, 192 L.Ed.2d 306 (2015) (stating that “a statement cannot fall
within the Confrontation Clause unless its primary purpose was testimonial”).
{¶ 30} In the case at bar, assuming, arguendo, that the victim’s text messages, photographs,
and other digital evidence may constitute hearsay, we note that appellant has not raised any
argument to explain why this evidence is testimonial in nature. Appellant has not argued that the
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primary purpose of the text messages, photographs, and other digital evidence was to create an
out-of-court substitute for trial testimony. Instead, he states in a conclusory fashion that the
evidence is “testimonial in nature.”
{¶ 31} Appellant also has not cited any authority to state that a victim’s text messages and
photographs sent to a defendant via an electronic medium constitute inadmissible hearsay and that
admitting this type of evidence violates the Confrontation Clause. We will not perform
independent research in order to create an argument for appellant. State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part),
quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (stating that “‘“appellate courts do
not sit as self-directed boards of legal inquiry and research, but [preside] essentially as arbiters of
legal questions presented and argued by the parties before them”’”) (brackets sic.); accord State v.
Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, 2019 WL 3891146, ¶ 57.
Consequently, we reject appellant’s argument that admitting the text messages, photographs, and
other digital evidence violated his rights under the Confrontation Clause.
{¶ 32} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
F
{¶ 33} In his second assignment of error, appellant asserts that the trial court plainly erred
by admitting into evidence the digital evidence without requiring the state to authenticate the
evidence.
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{¶ 34} Before a trial court may admit evidence, Evid.R. 901 requires the proponent to
identify or authenticate the evidence. Evid.R. 901(A) states: “The requirement of authentication
or identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Evid.R. 901(B)
outlines a non-exclusive list of the means by which a proponent may demonstrate authenticity.
See id. (stating that the examples listed in the rule serve as “illustration only” and not as
limitations). For instance, a proponent may identify or authenticate evidence by presenting
“[t]estimony that a matter is what it is claimed to be.” Evid.R. 901(B)(1).
{¶ 35} Circumstantial, as well as direct, evidence may be used to show authenticity. State
v. Reno, 4th Dist. Ross No. 04CA2759, 2005–Ohio–1294, ¶ 18. Moreover, the threshold standard
for authenticating evidence pursuant to Evid.R. 901(A) is low, and “‘does not require conclusive
proof of authenticity, but only sufficient foundational evidence for the trier of fact to conclude that
* * * [the evidence] is what its proponent claims it to be.’” Reno at ¶ 18, quoting State v. Easter,
75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th Dist.1991); Wellston v. Brown, 4th Dist. Jackson No.
03CA25, 2005–Ohio–532, ¶ 18; accord State v. Horton, 8th Dist. Cuyahoga No. 101100, 2015–
Ohio–99, ¶ 19, quoting State v. Roseberry, 197 Ohio App.3d 256, 2011–Ohio–5921, 967 N.E.2d
233, ¶ 65 (8th Dist.) (stating that the proponent “only needs to demonstrate a ‘reasonable
likelihood’ that the evidence is authentic”).
{¶ 36} In the case sub judice, appellant seems to assert that the state did not properly
authenticate the evidence obtained from appellant’s or the victim’s Facebook account, and did not
properly authenticate that the cell phones from which Detective Maher extracted the information
belonged to appellant and to the victim. We again note that appellant does not cite to a specific
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part of the transcript where error occurred, or to an exhibit number that he believes should not have
been admitted into evidence. Thus, in light of appellant’s failure to cite to particular parts of the
record we could simply disregard this assignment of error. We, however, will nevertheless
attempt to ascertain whether the trial court plainly erred by not inquiring whether the state had
authenticated the cell phone and Facebook evidence.
{¶ 37} First, we reject appellant’s assertion that the state failed to authenticate that the cell
phone introduced as appellant’s cell phone was, in fact, appellant’s cell phone. As the state points
out, appellant stipulated that the phone belonged to him. Thus, appellant’s argument that the state
failed to properly authenticate the phone as belonging to him is meritless.
{¶ 38} Next, we do not agree with appellant that the state failed to authenticate the evidence
obtained from Facebook. Other courts, including this court, have considered similar issues that
involve the authentication of social media evidence. In Oldaker, we explained:
“Facebook has been described as ‘a widely-used social-networking website
* * * that allows users to connect and communicate with each other.’” State v.
Gibson, 6th Dist. Lucas Nos. L–13–1222 and L–13–1223, 2015–Ohio–1679, ¶ 34,
quoting Ehling v. Monmouth–Ocean Hosp. Service Corp., 961 F.Supp.2d 659, 662
(D.J.N.J.2013). Facebook users often post content on the user’s profile page,
which delivers it to the user’s subscribers. Gibson at ¶ 35, citing Parker v. State,
85 A.3d 682, 686 (Del.2014). “These posts often include information relevant to
a criminal prosecution: ‘party admissions, inculpatory or exculpatory photos, or
online communication between users.’” Gibson at ¶ 35, quoting Parker at 686.
“Authentication concerns arise in regard to printouts from Facebook ‘because
anyone can create a fictitious account and masquerade under another person’s name
or can gain access to another’s account by obtaining the user's username and
password,’ and, consequently, ‘[t]he potential for fabricating or tampering with
electronically stored information on a social networking [site]’ is high.” Gibson
at ¶ 35, quoting Griffin v. State, 19 A.3d 415, 421 (Md.2011).
State v. Oldaker, 4th Dist. Meigs No. 16CA3, 2017-Ohio-1201, 2017 WL 1193818, ¶ 23.
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{¶ 39} In State v. Croghan, 9th Dist. No. 29290, 2019-Ohio-3970, 133 N.E.3d 631, 370
Ed. Law Rep. 1120, 2019 WL 4751863, the court determined that screenshots of the defendant’s
Facebook posts were properly authenticated even though the state did not subpoena information
from Facebook or from the internet service provider to link the posts to the defendant. In
Croghan, the defendant’s school principal testified that the principal took screenshots of the
defendant’s Facebook posts. A detective spoke to the defendant, and the defendant admitted that
the posts were hers. The court determined that the foregoing testimony allowed the jury to
determine that the screenshots were authentic and that the trial court did not abuse its discretion
by admitting the evidence.
{¶ 40} In State v. Fannon, 4th Dist. No. 17CA24, 2018-Ohio-5242, 117 N.E.3d 10, 2018
WL 6813951, ¶ 89, this court concluded that the state properly authenticated photographs of text
messages obtained from a cell phone when the investigator testified that the state’s exhibit
contained photographs of text messages she took from one of the phones the defendant and her co-
defendant turned over to investigators. We determined that the investigator’s testimony satisfied
the authentication requirement.
{¶ 41} Moreover, we observe that some courts have held that text messages obtained from
a cell phone extraction tool, like the Cellebrite tool that the detective used in the case at bar,
satisfies the authentication requirement. State v. Johnson, 7th Dist. Mahoning No. 17 MA 0050,
2019-Ohio-1089, 2019 WL 1400096, ¶ 34; see generally State v. Shine, 8th Dist. No. 105352,
2018-Ohio-1972, 113 N.E.3d 160, 2018 WL 2278171, ¶¶ 98-99; State v. Calhoun, 8th Dist.
Cuyahoga No. 105442, 2017-Ohio-8488, 2017 WL 5192435; State v. Durham, 2016-Ohio-691,
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60 N.E.3d 552 (8th Dist.); and State v. McMiller, 8th Dist. Cuyahoga No. 103962,
2016-Ohio-5844, 2016 WL 4979497.
{¶ 42} After our review, we do not believe that the trial court obviously erred in the case
sub judice by allowing the state to introduce evidence extracted from the cell phones and from
Facebook. In accordance with the authority set forth above, we believe that the state satisfied the
low threshold for authenticating the evidence. Detective Maher stated that he identified the victim
from viewing her profile on Facebook, that he obtained her cell phone, and that he later spoke with
the victim. Maher explained that the victim confirmed that she is the individual depicted in the
photographs and videos, and that she sent the text and Facebook messages to appellant.
Additionally, Maher testified that he used Cellebrite to extract the information from the cell
phones. Because Maher’s testimony shows that the state satisfied the low threshold for
authenticating evidence, the trial court did not obviously err by allowing the state to introduce the
evidence.
{¶ 43} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error.
II
{¶ 44} In his third assignment of error, appellant asserts that the trial court erred by
sentencing him to serve multiple prison terms for the nineteen pandering-obscenity offenses.
Appellant argues that all of the pandering obscenity offenses were committed with the same
animus, involved the same victim, the same act and occurred on the same date. Appellant likewise
contends that the two pandering-sexually-oriented-matter-involving-a-minor offenses were
committed with the same animus, involved the same victim, and occurred on the same date.
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Appellant thus claims that the trial court erroneously imposed multiple sentences for counts 1
through 19 and for counts 39 and 40.
{¶ 45} We initially note that because appellant did not argue before the trial court that the
offenses should merge, he has forfeited the right to raise this issue on appeal. We may, however,
review this assignment of error using a plain-error analysis. Quarterman at ¶ 15 and 16; Risner
at ¶ 27. We again note that “[t]o prevail under the plain-error standard, a defendant must show
that an error occurred, that it was obvious, and that it affected his substantial rights,” i.e., the trial
court’s error must have affected the outcome of the trial. State v. Obermiller, 147 Ohio St.3d 175,
2016-Ohio-1594, 63 N.E.3d 93, ¶ 62, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68,
759 N.E.2d 1240.
{¶ 46} A defendant demonstrates plain error by showing that a trial court imposed multiple
sentences for allied offenses of similar import. State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, 922 N.E.2d 923, 2010 WL 45973, ¶ 31 (stating that “a defendant is prejudiced by
having more convictions than are authorized by law”). A defendant cannot, however, establish
plain error based upon a bare allegation that the trial court failed to inquire whether offenses merge.
State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 1 and ¶ 3; accord State v.
Daniels, 1st Dist. Hamilton No. C-160203, 2017-Ohio-548, 2017 WL 657574, ¶ 14. Instead, in
order to establish that the trial court plainly erred by failing “to inquire whether the convictions
merge for purposes of sentencing,” the defendant must “demonstrate a reasonable probability that
the convictions are for allied offenses of similar import committed with the same conduct and
without a separate animus.” Rogers at ¶ 3; accord State v. Williams, 148 Ohio St.3d 403,
2016-Ohio-7658, 71 N.E.3d 234, ¶ 25.
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{¶ 47} In the case sub judice, appellant has not argued plain error on appeal. This court
ordinarily declines to develop a plain-error argument for an appellant who fails to do so. E.g.,
State v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-4315, 2018 WL 5314869, ¶ 23, citing
Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-Ohio-2877, 2017 WL 2257731, ¶ 34;
accord Quarterman, supra; Coleman v. Coleman, 9th Dist. Summit No. 27592, 2015-Ohio-2500,
¶ 9 (explaining that reviewing court will not craft plain-error argument for an appellant who fails
to raise one).
{¶ 48} Nevertheless, after our review, we do not believe that the record demonstrates a
reasonable probability that appellant’s convictions are for allied offenses of similar import,
committed with the same conduct and with the same animus.
{¶ 49} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution,
which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio St.3d
365, 2010–Ohio–1, 922 N.E.2d 923, ¶ 23; accord State v. Miranda, 138 Ohio St.3d 184, 2014–
Ohio–451, 5 N.E.3d 603; State v. Washington, 137 Ohio St.3d 427, 2013–Ohio–4982, 999 N.E.2d
661, ¶ 11. The statute provides:
(A) Where the same conduct by [a] defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may
contain counts for all such offenses, but the defendant may be convicted of only
one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same
or similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
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{¶ 50} For purposes of R.C. 2941.25 “a ‘conviction’ consists of a guilty verdict and the
imposition of a sentence or penalty.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922
N.E.2d 182, ¶ 12; accord State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,
¶ 17. Consequently, “R.C. 2941.25(A)’s mandate that a defendant may be ‘convicted’ of only
one allied offense is a protection against multiple sentences rather than multiple convictions.”
Whitfield at ¶ 18. Accordingly, “once the sentencing court decides that the offender has been found
guilty of allied offenses of similar import that are subject to merger, R.C. 2941.25 prohibits the
imposition of multiple sentences.” Williams at ¶ 19 (citation omitted). The sentencing court thus
has a mandatory duty to merge allied offenses. Id. at ¶ 27. “[I]mposing separate sentences for
allied offenses of similar import is contrary to law and such sentences are void.” Id. at ¶ 2.
Therefore, “a judgment of sentence is void * * * when the trial court determines that multiple
counts should be merged but then proceeds to impose separate sentences in disregard of its own
ruling.” State ex rel. Cowan v. Gallagher, 153 Ohio St.3d 13, 2018-Ohio-1463, 100 N.E.3d 407,
¶ 19, citing Williams at ¶ 28–29.
{¶ 51} Courts conduct a three-part inquiry to determine whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25: “(1) Were the offenses dissimilar
in import or significance? (2) Were they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the above will permit separate
convictions. The conduct, the animus, and the import must all be considered.” State v. Earley,
145 Ohio St.3d 281, 2015–Ohio–4615, 49 N.E.3d 266, ¶ 12, citing State v. Ruff, 143 Ohio St.3d
114, 2015–Ohio–995, 34 N.E.3d 892, ¶ 31 and paragraphs one, two, and three of the syllabus.
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{¶ 52} Offenses are of dissimilar import “if they are not alike in their significance and their
resulting harm.” Ruff at ¶ 21. Additionally, “a defendant’s conduct that constitutes two or more
offenses against a single victim can support multiple convictions if the harm that results from each
offense is separate and identifiable from the harm of the other offense.” Id. at ¶ 26. Thus, “two
or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the
defendant’s conduct constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.” Id. at ¶ 23. We further note that the defendant bears
the burden to establish that R.C. 2941.25 prohibits multiple punishments. State v. Washington,
137 Ohio St.3d 427, 2013–Ohio–4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d
65, 67, 514 N.E.2d 870 (1987).
{¶ 53} In the case at bar, after our review we are unable to conclude that the trial court
plainly erred by imposing multiple punishments for the pandering-obscenity offenses and for the
pandering-sexually-oriented-matter-involving-a-minor offenses. Instead, we believe that the
record supports a finding that each of the offenses resulted in a separate and identifiable harm.
{¶ 54} Ohio courts have found that child pornography offenses are offenses of dissimilar
import when each offense involves a separate file or image. “Each child pornography file or
image that is downloaded is ‘a new and distinct crime.’” State v. Mannarino, 8th Dist. Cuyahoga
No. 98727, 2013-Ohio-1795, 2013 WL 1859026, ¶ 53, quoting State v. Eal, 10th Dist. No. 11AP–
460, 2012–Ohio–1373, ¶ 93; accord State v. Davis, 8th Dist. Cuyahoga No. 105523,
2017-Ohio-9169, 2017 WL 6539300, ¶ 42. “[M]ultiple convictions are allowed for each
individual image because a separate animus exists every time a separate image or file is
downloaded and saved.” State v. Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795,
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2013 WL 1859026, ¶ 53, quoting State v. Hendricks, 8th Dist. No. 92213, 2009–Ohio–5556, ¶ 35,
citing State v. Stone, 1st Dist. No. C–040323, 2005–Ohio–5206; State v. Yodice, 11th Dist.
No.2001–L–155, 2002–Ohio–7344; accord State v. Hipps, 7th Dist. No. 16 MA 0098,
2017-Ohio-7707, 96 N.E.3d 1265, 2017 WL 4174827; State v. Pippin, 1st Dist. No. C-160380,
2017-Ohio-6970, 94 N.E.3d 1186, 2017 WL 3169055, ¶ 50; State v. Starcher, 5th Dist. No.
2015CA00058, 2015-Ohio-5250, 2015 WL 9078463.
{¶ 55} Courts have similarly held that multiple text messages or emails that involve child
pornography may constitute offenses of dissimilar import.
{¶ 56} In State v. Hines, 8th Dist. Cuyahoga No. 90871, 2009-Ohio-2118, 2009 WL
1244164, ¶ 41, for example, the court determined that multiple importuning offenses were offenses
of dissimilar import when the defendant sent one series of multiple text messages within an hour-
long time span, a second series within a four-minute time span, and a third series within a five-
minute time span. In reaching its decision, the court relied upon an earlier decision that involved
photographs taken in “quick succession,” State v. Blanchard, Cuyahoga App. No. 90935, 2009–
Ohio–1357. The Blanchard court determined that “‘the mere fact that the crimes occurred in
quick succession * * * does not mean that they were not committed separately or with separate
animus.’” Hines at ¶ 42, quoting Blanchard at ¶ 12.
{¶ 57} The Hines court further pointed to a federal district court case in which the court
rejected the argument that emails that contain child pornography sent within a forty-minute time
span were part of the same transaction. United States v. Matthews, 11 F.Supp.2d 656 (June 29,
1998). The Matthews court explained:
“a single email transmission is analogous to a single envelope placed in a mailbox.
When a person attaches child pornography to an email message and sends it through
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the phone wire, that person has just transported child pornography. If the person
decides to send another message a minute later and attaches another picture, that is
a separate act of transportation, regardless of the brief interval of time between
transmissions and regardless of whether the transmissions are part of a single
‘conversation.’”
Hines at 43, quoting Matthews at 659.
{¶ 58} The Hines court thus concluded that each text message that the defendant sent
soliciting another to engage in sexual conduct resulted in a separate and identifiable harm. The
court therefore determined that the allied offense statute did not prohibit multiple punishments for
the offenses.
{¶ 59} In the case sub judice, the evidence reveals that appellant sent the victim multiple
text messages, and solicited multiple photographs and a video, that all involve illicit sexual content.
Appellant obtained nineteen separate and distinct pornographic images of the victim.
Additionally, appellant viewed two videos that the victim sent to him in which the victim was
masturbating. Each separate text message, photograph, and video resulted in a separate and
identifiable harm. Appellant has not pointed to anything in the record to suggest a contrary
conclusion. We therefore cannot conclude that the trial court plainly erred by sentencing
appellant to multiple prison terms for the pandering-obscenity offenses and for the pandering-
sexually-oriented-matter-involving-a-minor offenses.
{¶ 60} Accordingly, based upon the foregoing reasons, we overrule appellant’s third
assignment of error.
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III
{¶ 61} In his fourth assignment of error, appellant asserts that trial counsel performed
ineffectively by failing to object to (1) hearsay evidence, (2) unauthenticated evidence, and (3) the
imposition of consecutive sentences for allied offenses of similar import.
{¶ 62} The Sixth Amendment to the United States Constitution and Article I, Section 10
of the Ohio Constitution provide that defendants in all criminal proceedings shall have the
assistance of counsel for their defense. The United States Supreme Court has generally
interpreted this provision to mean a criminal defendant is entitled to the “reasonably effective
assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); accord Hinton v. Alabama, 571 U.S. 263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014)
(explaining that the Sixth Amendment right to counsel means “that defendants are entitled to be
represented by an attorney who meets at least a minimal standard of competence”).
{¶ 63} To establish constitutionally ineffective assistance of counsel, a defendant must
show (1) that his counsel’s performance was deficient and (2) that the deficient performance
prejudiced the defense and deprived the defendant of a fair trial. E.g., Strickland, 466 U.S. at 687;
State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v. Powell,
132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either element
is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant’s failure to satisfy one of the
ineffective-assistance-of-counsel elements “negates a court’s need to consider the other”).
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{¶ 64} The deficient performance part of an ineffectiveness claim “is necessarily linked to
the practice and expectations of the legal community: ‘The proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.’” Padilla v.
Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466
U.S. at 688; accord Hinton, 571 U.S. at 273. Prevailing professional norms dictate that “a lawyer
must have ‘full authority to manage the conduct of the trial.’” State v. Pasqualone, 121 Ohio
St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418,
108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
{¶ 65} Furthermore, “‘[i]n any case presenting an ineffectiveness claim, “the performance
inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.’”
Hinton, 571 U.S. at 273, quoting Strickland, 466 U.S. at 688. Accordingly, “[i]n order to show
deficient performance, the defendant must prove that counsel’s performance fell below an
objective level of reasonable representation.” State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (citations omitted).
{¶ 66} Moreover, when considering whether trial counsel’s representation amounts to
deficient performance, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus,
“the defendant must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. Additionally, “[a] properly licensed attorney
is presumed to execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist.
Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477
N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by
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demonstrating that counsel’s errors were “so serious” that counsel failed to function “as the
‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S. at 687; e.g., State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio
St.3d 153, 156, 524 N.E.2d 476 (1988).
{¶ 67} We observe that the decision to object or not to object at trial ordinarily constitutes
a question of trial strategy. State v. Frierson, 8th Dist. Cuyahoga No. 105618, 2018-Ohio-391,
¶ 25, citing State v. Johnson, 7th Dist. Jefferson No. 16 JE 0002, 2016-Ohio-7937, ¶ 46.
Accordingly, “the failure to make objections is not alone enough to sustain a claim of ineffective
assistance of counsel.” Conway at ¶ 103.
Experienced trial counsel learn that objections to each potentially
objectionable event could actually act to their party’s detriment. * * * In light of
this, any single failure to object usually cannot be said to have been error unless the
evidence sought is so prejudicial * * * that failure to object essentially defaults the
case to the state. Otherwise, defense counsel must so consistently fail to use
objections, despite numerous and clear reasons for doing so, that counsel’s failure
cannot reasonably have been said to have been part of a trial strategy or tactical
choice.
State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 140.
{¶ 68} To establish prejudice, a defendant must demonstrate that a reasonable probability
exists that “‘but for counsel’s errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine the outcome.’” Hinton, 571 U.S.
at 275, quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio St.3d 360,
2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989), paragraph three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d 378,
2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (indicating that prejudice component requires a “but for”
analysis). “‘[T]he question is whether there is a reasonable probability that, absent the errors, the
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factfinder would have had a reasonable doubt respecting guilt.’” Hinton, 571 U.S. at 275, quoting
Strickland, 466 U.S. at 695. Furthermore, courts ordinarily may not simply presume the existence
of prejudice but, instead, must require the defendant to affirmatively establish prejudice. State v.
Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No.
01CA2592 (Apr. 2, 2002); see generally Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029,
145 L.Ed.2d 985 (2008) (observing that prejudice may be presumed in limited contexts, none of
which are relevant here). As we have repeatedly recognized, speculation is insufficient to
establish the prejudice component of an ineffective assistance of counsel claim. E.g., State v.
Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, 2017 WL 5641282, ¶ 34; State v. Jenkins,
4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No.
13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio-1625,
¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that
is purely speculative cannot serve as the basis for an ineffectiveness claim).
{¶ 69} In light of our dispositions of appellant’s first, second, and third assignments of
error, we conclude that appellant’s assertion that trial counsel provided ineffective assistance of
counsel is without merit. Even if trial counsel performed deficiently in any manner, appellant
cannot show that the outcome of the proceeding would have been different.
{¶ 70} Accordingly, based upon the foregoing reasons, we overrule appellant’s fourth
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty-day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Smith, P.J. & *Myers, V.J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
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NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
*Judge Beth A. Myers, First District Court of Appeals, sitting by assignment of the Ohio
Supreme Court in the Fourth Appellate District.