State v. Triplett

[Cite as State v. Triplett, 2014-Ohio-3101.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2013CA00209
SON ANDERSON TRIPLETT, JR. :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2013-
CR-0563
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 14, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO GEORGE URBAN
Stark County Prosecutor 116 Cleveland Ave. N.W., Ste 808
BY RENEE WATSON Canton, OH 44702
110 Central Plaza South
Canton, OH 44702
[Cite as State v. Triplett, 2014-Ohio-3101.]
Gwin, J.
{¶1} Defendant-appellant Son Anderson Triplett [“Triplett”] appeals his
convictions and sentences on one count of assault and one count of tampering with
drugs after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} Charla Green lives on Smith Ave. SW in Canton, across the street from
Tonya Rohrer. On March 23, 2013, she arrived home around 9:00 p.m. to find a white
Cadillac parked in front of her house. She parked behind the vehicle and walked past it
to her house. She recognized the man in the driver's seat as Triplett — she had seen
him and Rohrer together in the past.
{¶3} Triplett sat parked for a long time, and then repetitively drove up and down
the street. Green thought the situation was suspicious, and it scared her children. She
called 9-1-1 and reported Triplett's activities.
{¶4} Meanwhile, Rohrer was home asleep. Around 2:30-3:00 a.m., Triplett
entered her home, angry. Rohrer "knew not to argue with him" and "didn't want him to
go all crazy in [her] house with [her] kids around," so she went outside with him and sat
in his car. Triplett then took off with Rohrer in the car and drove around Canton while
beating her, biting her and threatening to kill her. Eventually Rohrer jumped from the
moving car to escape.
{¶5} While all that was going on, Gilise Mammone, an insomniac, was up
watching television. Around 3:00 a.m., she heard someone pounding frantically at her
door. She looked outside, but did not see anyone. She went to a different window and
saw a white car drive past. Mammone then went to the front door and opened the
Stark County, Case No. 2013CA00209 3
interior door, but still saw nothing. She then opened the screen door and yelled, "What’s
going on out here?"
{¶6} Rohrer emerged from between the houses, and begged Mammone to let
her in, pleading, "he's trying to kill me." Mammone said no, closed, and locked the
screen door. Rohrer stepped up onto the porch, tripping the security light. Mammone
then saw terror in Rohrer's eyes, and an injury on her forehead. Rohrer continued
repeating, "He’s going to kill me." Mammone relented and let Rohrer come inside her
home.
{¶7} Mammone sat Rohrer down and called 9-1-1. After giving the dispatcher
her location and the nature of the call, she put Rohrer on the phone. Rohrer was upset,
crying and breathing heavily. She told the dispatcher "he was beating on me...I'm not
lying about it- he tried to kill me."
{¶8} Three Canton Police Officers arrived shortly thereafter. Although Rohrer
was "in a semi-state of hysteria," Officer Jim Meyers also felt Rohrer was not being
completely honest. Rohrer first claimed that while out walking her dog, she was
abducted by an unknown black male who was driving a white Cadillac. She said the
man beat her, bit her, choked her and explained to her in detail how he was going to kill
her. Meyers noted Rohrer had a lump on her forehead, but Rohrer refused medical
attention and stated she wanted to go home. Meyers put her in his cruiser and started
driving toward her home.
{¶9} On the way, a call went out notifying officers that the suspect white
Cadillac and driver had been located and stopped. Meyers changed course, and took
Rohrer to that location. She identified Triplett as the man who assaulted her.
Stark County, Case No. 2013CA00209 4
{¶10} At that point, Rohrer became more cooperative. She told Meyers that she
knew Triplett, and that initially their meeting that evening began civilly. He came to her
house and they sat in his car talking. Then the conversation became heated, and she
wanted to leave the car. However, Triplett grabbed her, drove off at speed and started
"whaling" on her — choking her, biting her and hitting her in the ribs. He explained how
he was going to kill her. Rohrer finally managed to bail out of the car near Mammone's
home.
{¶11} Meyers photographed Rohrer's injuries — a lump on her head bruises on
her neck and a bite mark on her chin, Rohrer additionally complained that her ribs hurt,
but still refused medical treatment.
{¶12} Triplett was arrested and booked by Officers Sharpe and Grant. During
booking a clear plastic sandwich baggie containing six blue pills was found in Triplett's
pants pocket. Triplett initially claimed the pills were Viagra, but then later stated they
were Xanax and that he sometimes sells the pills for cash. The pills were sent to the
Canton Stark County Crime Lab where Jay Spencer completed testing on the pills. He
confirmed that they were indeed Xanax, a Schedule IV drug.
{¶13} As a result of his actions, Triplett was later charged with one count each of
kidnapping, assault and tampering with drugs.
{¶14} The state presented six witnesses. Triplett rested without presenting
evidence. After hearing all the evidence and deliberating for three hours, the jury
acquitted Triplett of kidnapping, but convicted him of assault and tampering with drugs.
Triplett was subsequently sentenced to 180 days for assault and 24 months for
tampering with drugs. The court ordered Triplett to serve the sentences concurrently.
Stark County, Case No. 2013CA00209 5
Assignments of Error
{¶15} Triplett raises four assignments of error,
{¶16} “I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE USE A
PEREMPTORY CHALLENGE TO EXCUSE THE ONLY PROSPECTIVE AFRICAN
AMERICAN JUROR.
{¶17} “II. APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF
PROSECUTORIAL MISCONDUCT.
{¶18} “III. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND
OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSITUTION,[sic.] BECAUSE HIS
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSITANCE. [sic.]
{¶19} “IV. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
I.
{¶20} A defendant is denied equal protection of the law guaranteed to him by the
Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the
Ohio Constitution when the state places the defendant on trial before a jury from which
members of the defendant's race have been purposely excluded. Strauder v. W.
Virginia, 100 U.S. 303, 305, 25 L.Ed. 664(1880); State v. Hernandez, 63 Ohio St.3d
577, 589 N.E.2d 1310(1992); State v. Bryant, 104 Ohio App.3d 512, 516, 662 N.E.2d
846(6th Dist. 1995). The “equal protection clause forbids a prosecutor from challenging
potential jurors solely on account of their race or on the assumption that jurors of the
Stark County, Case No. 2013CA00209 6
same race as the defendant will be unable to impartially consider the state's case
against the defendant.” State v. Bryant, 104 Ohio App.3d 512, 516, 662 N.E.2d 846(6th
Dist. 1995); Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).
{¶21} In his first assignment of error, Triplett maintains that the trial court failed
to conduct a proper constitutional analysis as outlined in Batson v. Kentucky in
determining that the state was not racially motivated in excluding an African-American
from the jury through the use of peremptory challenges. See, Hicks v. Westinghouse
Materials Co., 78 Ohio St.3d 95, 98, 676 N.E. 2d 872(1997); State v. Toland, 5th Dist.
No. 2006-CA-0162, 2007-Ohio-644.
The Batson Test
{¶22} Whenever a party opposes a peremptory challenge by claiming racial
discrimination “[a] judge should make clear, on the record, that he or she understands
and has applied the precise Batson test * * *.” Hicks v. Westinghouse Materials Co., 78
Ohio St.3d at 99, 676 N.E. 2d 872.
{¶23} In Hicks, the Ohio Supreme Court set forth the Batson test as follows:
The United States Supreme Court set forth in Batson the test to be
used in determining whether a peremptory strike is racially motivated.
First, a party opposing a peremptory challenge must demonstrate a prima-
facie case of racial discrimination in the use of the strike. Id. at 96, 106
S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a prima-facie case, a litigant
must show he or she is a member of a cognizable racial group and that
the peremptory challenge will remove a member of the litigant's race from
the venire. The peremptory-challenge opponent is entitled to rely on the
Stark County, Case No. 2013CA00209 7
fact that the strike is an inherently ‘discriminating’ device, permitting ‘those
to discriminate who are of a mind to discriminate’. State v. Hernandez
(1992), 63 Ohio St.3d 577, 582, 589 N.E.2d 1310, 1313, certiorari denied
(1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d 206. The litigant must
then show an inference of racial discrimination by the striking party. The
trial court should consider all relevant circumstances in determining
whether a prima-facie case exists, including all statements by counsel
exercising the peremptory challenge, counsel's questions during voir dire,
and whether a pattern of strikes against minority venire members is
present. See, Batson at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.
Assuming a prima-facie case exists, the striking party must then articulate
a race-neutral explanation ‘related to the particular case to be tried.’ Id. at
95, 106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of general
good faith will not suffice. However, the explanation ‘need not rise to the
level justifying exercise of a challenge for cause.’ Id. at 97, 106 S.Ct. at
723, 90 L.Ed.2d at 88. The critical issue is whether a discriminatory intent
is inherent in counsel's explanation for use of the strike; intent is present if
the explanation is merely pretext for exclusion based on race. Hernandez
v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395,
409(1991).
Hick, 78 Ohio St.3d. at 98-99, 676 N.E.2d 872.
{¶24} Although the prosecutor must present a comprehensible reason, “[t]he
second step of this process does not demand an explanation that is persuasive or even
Stark County, Case No. 2013CA00209 8
plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v.
Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834(1995) (per curiam);
Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824(2006).
{¶25} Last, the trial court must determine whether the party opposing the
peremptory strike has proved purposeful discrimination. Purkett v. Elem, 514 U.S. at
766-767, 115 S.Ct. 1769, 131 L.Ed.2d 834. It is at this stage that the persuasiveness,
and credibility, of the justification offered by the striking party becomes relevant. Id. at
768, 115 S.Ct. at 1771, 131 L.Ed.2d 834. The critical question, which the trial judge
must resolve, is whether counsel's race-neutral explanation should be believed.
Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. 1859,114 L.Ed.2d 395; State v.
Nash, 5th Dist. No. 1995 CA 00024, 1995 WL 767987(August 14, 1995). This final step
involves evaluating “the persuasiveness of the justification” proffered by the prosecutor,
but “the ultimate burden of persuasion regarding racial motivation rests with, and never
shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769, 131
L.Ed.2d 834; Rice v. Collins, 546 U.S. at 338, 126 S.Ct. 969, 163 L.Ed.2d 824.
{¶26} On direct appeal in federal court, the credibility findings a trial court makes
in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U.S. at
364-366, 111 S.Ct. 1859, 114 L.Ed.2d 395. (Holding that evaluation of a prosecutor's
credibility “lies ‘peculiarly within a trial judge's province’”). Rice v. Collins, 546 U.S. at
338, 126 S.Ct. 969, 163 L.Ed.2d 824.
{¶27} It is irrelevant how many minority jurors remain on the panel if even one is
excluded because of race. State v. Bryant, 104 Ohio App.3d 512, 662 N.E.2d 846(6th
Dist. 1995); State v. Tuck 80 Ohio App.3d 721, 724, 610 N.E.2d 591(10th Dist. 1992)
Stark County, Case No. 2013CA00209 9
(Batson, applicable even if there is only one African-American juror on the panel); Jones
v. Ryan, 987 F.2d 960, 972( 3rd Cir. 1993); United States v. David, 803 F.2d 1567(11th
Dist. 1986).
Batson Does Not Apply to a Challenge “For Case.”
{¶28} In the case at bar, Triplett complains that the trial court erred when it did
not make a clear record that it understood or applied the Batson test when it permitted
the state to use a peremptory challenge to excuse Juror 36, the only prospective African
American juror. (Appellant’s Brief at 8).
{¶29} However, the state did not seek to utilize a preemptory challenge to
remove Juror No. 36; rather the trial judge sua sponte struck the juror “for cause.” (1T.
at 78-79).
{¶30} Challenges for cause are governed by R.C. 2945.25 and Crim.R. 24(C). A
person called as a juror in a criminal case may be challenged for many reasons,
including "That he otherwise is unsuitable for any other cause to serve as a juror." R.C.
2945.25(0). See Crim.R. 24(C)(14). In State v. Cassano, the Ohio Supreme Court
observed,
Defendants are entitled to fair trials, an essential part of which is
“‘a panel of impartial, “indifferent” jurors.’ ” Murphy v. Florida (1975), 421
U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589, quoting Irvin v. Dowd
(1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. However, trial courts
have discretion in determining a juror’s ability to be impartial. State v.
Williams (1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 452 N.E.2d 1323.
“‘Deference must be paid to the trial judge who sees and hears the juror.’ ”
Stark County, Case No. 2013CA00209 10
State v. Tyler (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, quoting
Wainwright v. Witt (1985), 469 U.S. 412, 426, 105 S.Ct. 844, 83 L.Ed.2d
841. Thus, a “ruling on a challenge for cause will not be disturbed on
appeal unless it is manifestly arbitrary * * * so as to constitute an abuse of
discretion.” Tyler, 50 Ohio St.3d at 31, 553 N.E.2d 576. Accord State v.
Williams (1997), 79 Ohio St.3d 1, 8, 679 N.E.2d 646.
96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶58.
{¶31} In State v. Sanders, 92 Ohio St.3d 245, 249, 750 N.E.2d 90 (2001), the
Supreme Court of Ohio held that: “[A]n erroneous excusal for cause, on grounds other
than the venireman’s views on capital punishment, is not cognizable error, since a party
has no right to have any particular person sit on the jury. Unlike the erroneous denial of
a challenge for cause, an erroneous excusal cannot cause the seating of a biased juror
and therefore does not taint the jury’s impartiality.” At least one Court has recognized,
however,
We recognize that a trial court must have substantial discretion in
ruling upon challenges for cause—precisely because it is there to see and
hear the prospective juror, while we are not. But completely immunizing
from appellate review decisions to excuse prospective jurors for cause
may lead to substantial injustice. As a result, a trial judge may, with
impunity, follow a practice of routinely allowing the State (or one party in
civil litigation) to exclude jurors for cause without any basis in the record,
while requiring a strict basis in the record for the other party’s challenges
for cause. This would have the effect of allowing unlimited peremptory
Stark County, Case No. 2013CA00209 11
challenges by one party, but not by the other, thereby allowing the
preferred party a greater opportunity to choose the jury.
State v. Smith, 2nd Dist. Montgomery No. 24402, 2013-Ohio-1586, ¶23.
{¶32} In the case at bar, excusing Juror No. 26 was within the trial court’s
discretion. Crim.R. 24(B) provides,
A person called as a juror may be challenged for the following
causes:
***
(14) That he is otherwise unsuitable for any other cause to serve as
a juror.
{¶33} A juror can be excused for cause for a myriad of reasons under the
catchall provision of R.C. 2945.37(O). Reasons can range from inattentiveness to
financial hardship to health concerns. Indeed, in State v. Sanders, 92 Ohio St.3d 245,
249, 2001-Ohio-189, 750 N.E.2d 90, a venire person was excused for cause because
she could not go without a cigarette for any length of time.
{¶34} In the case at bar the record indicated that Juror 36 was have trouble
giving the trial the attention it deserved. (1T. at 53-54; 66). In making its decision to
excuse Juror 36 for cause, the trial court made it clear that not only Juror 36's answers,
but also what he was conveying through his body language, indicated he would not give
this case the attention it was due. Juror 36's answers and inattentive attitude made him
otherwise unsuitable as a juror pursuant to R.C. 2945.25(O).
{¶35} Triplett has not alleged that the trial court’s reasons for removing Juror No.
36 for cause were not supported by the record. Triplett’s only argument is that the
Stark County, Case No. 2013CA00209 12
prosecutor “purposefully excused” the only African-American juror. (Appellant’s Brief at
8). The record does not support Triplett’s contentions.
{¶36} Triplett’s first assignment of error is overruled.
II.
{¶37} In his second assignment of error, Triplett argues that the prosecutor
committed misconduct by engaging in a line of questioning that was "testimonial in
nature" during her direct examination of Rohrer.
{¶38} The prosecutor's duty in a criminal trial is two-fold. The prosecutor is to
present the case for the State as its advocate and the prosecutor is responsible to
ensure that an accused receives a fair trial. Berger v. United States, 295 U. S. 78, 55
S.Ct. 629, 79 L.Ed. 1314(1935) overruled on other grounds by Stirone v. United States,
361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); State v. Staten (1984), 14 Ohio
App.3d 78, 470 N.E.2d 249(2nd Dist. 1984).
{¶39} Allegations of prosecutorial misconduct implicate due-process concerns,
and the touchstone of the analysis is the “‘fairness of the trial, not the culpability of the
prosecutor.’” State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, ¶ 92,
quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). An
appellate court should also consider whether the misconduct was an isolated incident in
an otherwise properly tried case. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d
203, 209-210(1993); Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d
144(1986).
{¶40} Triplett first maintains that the prosecutor essentially testified by asking
Rohrer leading questions.
Stark County, Case No. 2013CA00209 13
{¶41} In the case at bar, the trial court found Rohrer was being uncooperative
under the state's questioning and permitted the state to question Rohrer as a hostile
witness, and pursuant to Evid. R. 611(C).
{¶42} Evid.R. 611(C) provides, “Leading questions [may be used on direct
examination] to develop [a witness's] testimony. * * * When a party calls a hostile
witness, an adverse party, or a witness identified with an adverse party, interrogation
may be by leading questions.”
{¶43} Evid.R. 607 states:
The credibility of a witness may be attacked by any party except
that the credibility of a witness may be attacked by the party calling the
witness by means of a prior inconsistent statement only upon a showing of
surprise and affirmative damage. This exception does not apply to
statements admitted pursuant to Rules 801(D)(1)(A), 801(D)(2), or 803.
{¶44} Triplett does not challenge the trial court's decision to permit the state to
question Rohrer as a hostile witness. Thus, pursuant to Evid. R. 607, the state could
use Rohrer’s prior statement for impeachment purposes.
{¶45} Triplett next contends that the prosecutor made improper comments
during closing argument.
{¶46} The test for prejudice in closing arguments is “‘ “whether the remarks were
improper, and, if so, whether they prejudicially affected substantial rights of the
defendant.” ’ ” State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶
83, quoting State v. Hessler, 90 Ohio St.3d 108, 125, 734 N.E.2d 1237 (2000), quoting
State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984).
Stark County, Case No. 2013CA00209 14
{¶47} For a prosecutor’s closing argument to be prejudicial, the remarks must be
“so inflammatory as to render the jury’s decision a product solely of passion and
prejudice.” State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986). To
determine whether the remarks were prejudicial, the court must review the closing
argument in its entirety. State v. Slagle, 65 Ohio St.3d 597, 607, 605 N.E.2d 916 (1992);
State v. Moritz, 63 Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980). Thus, the court must
consider all of the prosecutor’s remarks, irrespective of whether the defense preserved
an objection. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993) ( “even
though the defense waived objection to many remarks, those remarks still form part of
the context in which we evaluate the effect on the jury of errors that were not waived”).
{¶48} Assuming, arguendo, the prosecutor's comment was improper, we find
Triplett cannot show prejudicial error. The trial court sustained the objection and gave a
curative instruction. A jury is presumed to follow the curative instructions of the court.
State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623, 634(1995); State v. Loza, 71
Ohio St.3d 61, 75, 641 N.E.2d 1082, 1100(1994). Additionally, there is only one incident
of alleged misconduct in closing argument. If indeed the statement constituted
misconduct, it was an isolated incident in an otherwise properly tried case. We find the
prosecutor’s single, isolated statement in closing argument to be harmless beyond a
reasonable doubt.
{¶49} Triplett’s second assignment of error is overruled.
III.
{¶50} Officer Lamar Sharpe of the Canton Police Department testified that
Triplett made a statement that he, Triplett, sold Xanax. (1T. at 240). In his third
Stark County, Case No. 2013CA00209 15
assignment of error, Triplett contends that his trial counsel was ineffective when he
failed to play any audio or video recordings concerning the alleged statement he made
to Officer Sharpe.[Appellant’s Brief at 12).
{¶51} The standard for reviewing claims for ineffective assistance of counsel
was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984). Ohio adopted this standard in the case of State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373(1989). These cases require a two-pronged analysis in reviewing a
claim for ineffective assistance of counsel.
{¶52} First, we must determine whether counsel's assistance was ineffective;
i.e., whether counsel's performance fell below an objective standard of reasonable
representation and volatile of any of his essential duties to the client.
{¶53} Recently, the United States Supreme Court discussed the prejudice prong
of the Strickland test,
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the
errors had some conceivable effect on the outcome of the proceeding.”
Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at
687, 104 S.Ct. 2052.
Stark County, Case No. 2013CA00209 16
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and
so the Strickland standard must be applied with scrupulous care, lest
“intrusive post-trial inquiry” threaten the integrity of the very adversary
process the right to counsel is meant to serve. Strickland, 466 U.S., at
689–690, 104 S.Ct. 2052. Even under de novo review, the standard for
judging counsel’s representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting” to “second-guess
counsel’s assistance after conviction or adverse sentence.” Id., at 689,
104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s
representation amounted to incompetence under “prevailing professional
norms,” not whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).
{¶54} We apply the Strickland test to all claims of ineffective assistance of
counsel, either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. Guernsey
No. 2005-CA-41, 2006-Ohio-5214.
Stark County, Case No. 2013CA00209 17
{¶55} In the case at bar, the following exchange occurred at trial
[Defense counsel]: There’s no recording of this statement
that he made to you?
[Officer Sharpe]: Actually, they are taped down there.
1T. at 241. Nothing in the record supports the conclusion that a tape existed of the
specific encounter and/or that if a tape did in fact exist it would be exculpatory to
Triplett. Even if Triplett had made no statement concerning the pills found in his
possession, however, he cannot demonstrate prejudice as a result of counsel’s actions.
{¶56} Triplett was convicted of with tampering with drugs pursuant to R.C.
2925.24(B),
(B) No person shall knowingly adulterate or alter any package or
receptacle containing any dangerous drug or substitute any package or
receptacle containing any dangerous drug with another package or
receptacle.
{¶57} R.C. 2925.24(D) provides,
(D) It is an affirmative defense to a charge under this section
alleging that a person altered a dangerous drug that the dangerous drug
the person allegedly altered was lawfully prescribed for the person's
personal use and that the person did not sell or transfer or intend to sell or
transfer the dangerous drug to another person.
{¶58} Thus, it was Triplett’s burden to produce a valid prescription in order to
prove the affirmative defense provided by R.C. 2925.24(D). Accordingly, even if Triplett
Stark County, Case No. 2013CA00209 18
had not made a statement to Officer Sharpe the jury could still find him guilty of
tampering with drugs.
{¶59} Having reviewed the record that Triplett cites in support of his claim that
he was denied effective assistance of counsel, we find Triplett was not prejudiced by
defense counsel’s representation of him. The result of the trial was not unreliable nor
were the proceedings fundamentally unfair because of the performance of defense
counsel. Triplett has failed to demonstrate that there exists a reasonable probability
that, had trial counsel presented audio or video recordings of Triplett’s encounter with
Officer Sharpe the result of his case would have been different.
{¶60} Triplett’s third assignment of error is overruled.
IV.
{¶61} Triplett contends that his convictions are against the manifest weight of
the evidence.
Standard of Review
{¶62} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶68.
Stark County, Case No. 2013CA00209 19
{¶63} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. 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. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue,
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶64} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.Stark County, Case No. 2013CA00209 20
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
{¶65} Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at
191–192 (1978).
Analysis
Sufficiency of the Evidence
1). Tampering with Drugs.
{¶66} Triplett was convicted of with tampering with drugs pursuant to R.C.
2925.24(B),
(B) No person shall knowingly adulterate or alter any package or
receptacle containing any dangerous drug or substitute any package or
receptacle containing any dangerous drug with another package or
receptacle.
{¶67} R.C. 2925.24(D) provides an affirmative defense to the charge:
Stark County, Case No. 2013CA00209 21
(D) It is an affirmative defense to a charge under this section
alleging that a person altered a dangerous drug that the dangerous drug
the person allegedly altered was lawfully prescribed for the person's
personal use and that the person did not sell or transfer or intend to sell or
transfer the dangerous drug to another person.
{¶68} Triplett argues that Officer Sharpe could only assume Triplett placed the
Xanax in the baggie and that the state could not prove that Triplett did not have a valid
prescription for Xanax.
{¶69} Although the evidence that Triplett was responsible for placing the pills in
the plastic bag found in his pocket may have been circumstantial, we note that
circumstantial evidence has the same probative value as direct evidence. State v. Jenks
61 Ohio St.3d 259, 574 N.E. 2d 492(1991).
{¶70} If the State relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “‘such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.’” Jenks, at paragraph
one of the syllabus. “‘Circumstantial evidence and direct evidence inherently possess
the same probative value [.]’” Jenks, at paragraph one of the syllabus.
{¶71} Furthermore, “‘[s]ince circumstantial evidence and direct evidence are
indistinguishable so far as the jury's fact-finding function is concerned, all that is
required of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against
the standard of proof beyond a reasonable doubt.’” Jenks, 61 Ohio St.3d at 272, 574
N.E. 2d 492. While inferences cannot be based on inferences, a number of conclusions
can result from the same set of facts. State v. Lott, 1 Ohio St.3d 160, 168, 555 N.E.2d
Stark County, Case No. 2013CA00209 22
293(1990), citing Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 331, 130
N.E.2d 820(1955). Moreover, a series of facts and circumstances can be employed by a
jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555
N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶72} The baggie containing Xanax was found in Triplett's pants pocket creating
the inference that he removed the pills from their proper container and placed them in
the baggie. Further, the state presented evidence that Triplett told Officer Sharpe he
sometimes sold the Xanax for cash. Finally, it was Triplett’s burden to produce a valid
prescription in order to prove the affirmative defense provided by R.C. 2925.24(D).
{¶73} Accordingly, viewing the evidence in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Triplett committed the crime of tampering with drugs. We hold,
therefore, that the state met its burden of production regarding each element of the
crime of tampering with drugs and, accordingly, there was sufficient evidence to submit
the charge to the jury and to support Triplett’s conviction.
2. Assault.
{¶74} Triplett was also charged with assault pursuant to R.C. 2903.13(A). To
prove the charge, it was necessary for the state to show that Triplett knowingly caused
or attempted to cause physical harm to Rohrer. “Physical harm to persons” means any
injury, illness, or other physiological impairment, regardless of its gravity or duration.
R.C. 2901.01(A)(3).
{¶75} Triplett points to testimony that Rohrer herself testified Triplett did not
cause her injuries. Rohrer testifed that Triplett did not hit her and if she had any marks it
Stark County, Case No. 2013CA00209 23
would have been from her coat. (1T. at 158-159). Moreover, Rohrer testified that she
hurt herself when she jumped out Triplett’s vehicle. (Id.). Rohrer testified that if she had
any injuries at all, they would have been by her own actions and she did not seek any
medical treatment. (1T. at 160-167). Triplett states this testimony indicates that his
conviction for assault was against the manifest weight and sufficiency of the evidence
because the alleged victim, Rohrer, testified that her injuries were self-inflicted because
she jumped out of Triplett’s car while it was moving.
{¶76} The state presented evidence that during the 9-1-1 call, state's exhibit 1,
Rohrer was upset, crying, and breathing heavily. She repeats many times to the 9-1-1
operator the same thing she kept repeating to Mammone, "he tried to kill me." She then
told Officer Meyers that Triplett refused to let her out of his car while he beat her,
choked her and bit her.
{¶77} Accordingly, viewing the evidence in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Triplett committed the crime of assault. We hold, therefore, that
the state met its burden of production regarding each element of the crime of assault
and, accordingly, there was sufficient evidence to submit the charge to the jury and to
support Triplett’s conviction.
Manifest Weight
{¶78} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
Stark County, Case No. 2013CA00209 24
¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,
201, 722 N.E.2d 125 (7th Dist. 1999).
{¶79} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983).
{¶80} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
Stark County, Case No. 2013CA00209 25
Although the evidence may have been circumstantial, we note that circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, supra.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
{¶81} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the
Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
Stark County, Case No. 2013CA00209 26
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
{¶82} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost their way
nor created a miscarriage of justice in convicting Triplett of the charges.
{¶83} Based upon the foregoing and the entire record in this matter, we find
Triplett’s convictions were not against the sufficiency or the manifest weight of the
evidence. To the contrary, the jury appears to have fairly and impartially decided the
matters before them. The jury as a trier of fact can reach different conclusions
concerning the credibility of the testimony Rohrer and the other witnesses. This court
will not disturb the trier of facts finding so long as competent evidence was present to
support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard
the witnesses, evaluated the evidence, and was convinced of Triplett’s guilt.
Stark County, Case No. 2013CA00209 27
{¶84} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of
each crime beyond a reasonable doubt.
{¶85} Triplett’s fourth assignment of error is overruled.
{¶86} For the foregoing reasons, the judgment of the Stark County Court of
Common Pleas, Ohio, is affirmed.
By Gwin, J.,
Hoffman, P.J., and
Wise, J., concur