State v. Johnson

[Cite as State v. Johnson, 2011-Ohio-994.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-10-47
v.
KIRBY JOHNSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 09CR0440
Judgment Affirmed
Date of Decision: March 7, 2011
APPEARANCES:
Robert C. Nemo for Appellant
Brent A. Yager and David J. Stamolis for Appellee
Case No. 9-10-47
SHAW, J.
{¶1} Defendant-appellant, Kirby Johnson (“Johnson”), appeals the July 16,
2010 judgment of the Common Pleas Court of Marion County, Ohio, finding him
guilty of one count of trafficking in marijuana in an amount exceeding 1,000
grams, a third degree felony, in violation of R.C. 2925.03(A)(1), (C)(3), and
sentencing him to five years in prison.
{¶2} The facts relevant to this appeal are as follows. In August of 2009,
Dylan Hollar was found in possession of a substantial amount of marijuana by law
enforcement. In an effort to avoid being sent to prison, Hollar informed officers
with the MARMET drug task force in Marion, Ohio, that he was willing to be a
confidential informant and that he could buy six to eight pounds of marijuana from
Johnson, who lived in Cleveland, Ohio. Hollar then contacted Johnson by phone
and asked Johnson if he had any marijuana that he could sell. Johnson indicated
that he did and that he would be able to drive to Marion that day to bring it to him.
This call was recorded by MARMET.
{¶3} Although Johnson indicated that he could deliver the marijuana to
Hollar that day, he was not able to do so. The following day, Hollar and Johnson
agreed to meet in Marion to exchange the marijuana. This conversation was also
recorded. However, this meeting did not occur either. After several attempts to
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contact Johnson over the next couple of days, he eventually told Hollar that he
could bring the marijuana to him on August 24, 2009.
{¶4} On August 24, 2009, Johnson and Hollar spoke on multiple occasions
to discuss where they were going to meet, how long it would take Johnson to drive
to Marion, and where Johnson was located at various points during his trip to
Marion. After discussing a number of places to meet to complete the transaction,
the two agreed to meet at the Lowe’s parking lot. While waiting on Johnson to
come from Cleveland, Detective Dan Ice stayed with Hollar at a business located
near Lowe’s. When MARMET learned that Johnson was in the vicinity, Hollar
left with his girlfriend, who was driving her car because Hollar did not have a
valid driver’s license, to go to the Lowe’s parking lot. Det. Ice also went to the
Lowe’s parking lot in an unmarked car, as did a number of other officers. Prior to
this time, MARMET had arranged for Hollar to have Johnson bring the marijuana
to him inside of his girlfriend’s car and then his girlfriend was to exit the vehicle,
open the trunk, and walk away as a signal for MARMET that Johnson had in fact
delivered the marijuana.
{¶5} Johnson arrived at the Lowe’s parking lot in a green conversion van,
which was driven by another individual. The van pulled alongside Hollar’s
vehicle, and Johnson exited the van carrying a white plastic bag. Johnson entered
Hollar’s vehicle through the rear passenger side door. Shortly thereafter, Hollar’s
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girlfriend exited the car and opened the trunk. The officers approached the
vehicle, ordered Johnson out of the car, and secured it. Johnson was then placed
under arrest and taken to a nearby patrol car. Johnson was informed of his
Miranda rights, and he invoked his right not to speak to the officers. The officers
also ordered the two occupants out of the green van, placed them under arrest, and
questioned them.
{¶6} Inside Hollar’s vehicle, MARMET found the white plastic bag that
Johnson was carrying in the back seat. Inside this bag was a brown paper bag
containing six clear plastic re-sealable bags, each containing what appeared to be
marijuana. Later, another MARMET detective tested the contents of the re-
sealable bags and found that they contained 2,433.80 grams of marijuana.
{¶7} On September 3, 2009, Johnson was indicted for one count of
trafficking in marijuana in violation of R.C. 2925.03(A)(1), (C)(3)(a), a felony of
the third degree. His arraignment was held on September 8, 2009, and he entered
a plea of not guilty. According to the arraignment entry, Johnson had a probation
holder on him from Cuyahoga County, Ohio, at that time. On September 9, 2009,
Johnson’s court-appointed counsel filed a request for a bill of particulars, a
demand for discovery, and a request for notice of the prosecutor’s intent to use
evidence. The State responded to the demand for discovery and the notice of
intent to use evidence eight days later.
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{¶8} Initially, Johnson’s trial was scheduled to begin on November 17,
2009. On November 9, 2009, the State filed a motion to continue the trial because
the prosecutor assigned to the case had a scheduling conflict and was unavailable
that day and the State wanted Johnson’s trial to be conducted at the same time as
the trials of his co-defendants (the other two occupants of the van). In this motion,
the State noted that Johnson would not suffer any prejudice because he had
recently fired his first attorney and retained a new attorney. However, Johnson’s
first attorney filed a response in opposition to this motion on Johnson’s behalf. In
this response, counsel stated that a hearing had been held on the matter of Johnson
firing him and that the trial court ordered him to remain on the case until a new
attorney entered an appearance. In addition, counsel stated that Johnson had
requested that the trial court proceed with the previously scheduled jury trial date.
{¶9} The trial court granted the State’s motion for a continuance and held
that the time for speedy trial was tolled pursuant to R.C. 2945.72(H). The next
date set for Johnson’s trial was January 21, 2010. In the court’s entry granting the
continuance, it noted this new trial date was the first date available to all of the
parties and the court.
{¶10} On November 19, 2009, Johnson’s first attorney filed a motion to
withdraw as counsel and attached a letter addressed to the trial court from Johnson
wherein Johnson cited a number of issues he was having with counsel’s
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representation of him. The court granted the motion on December 2, 2009, after
having held a hearing on the matter the previous day. Johnson was then appointed
a new attorney.
{¶11} On January 14, 2010, Johnson’s second attorney filed a motion to
withdraw as counsel. After a hearing on the matter, the trial court overruled this
motion.1 Sometime that same day, Johnson told a correctional officer at the jail,
Dan Lehman, that he wanted to speak to a MARMET officer. At that time, two
MARMET detectives, Christy Utley and Ryan Ward, were in the booking area of
the jail on an unrelated matter. C.O. Lehman informed the officers that Johnson
wanted to speak with them, and they indicated that they could speak to him then.
{¶12} Johnson was then brought to the booking area. Det. Ward and
Johnson stepped into a side room where the inmates’ jail clothing is kept, and Det.
Ward said, “What’s up.” Johnson told him that he had been in jail for five
months, that he was tired of being in jail, that Hollar called him for marijuana, that
he made a few phone calls, came down to Marion with the marijuana, and now he
was in jail but that he was only supposed to make $200.00 out of the transaction
with Hollar. Det. Ward told Johnson that he did not know what Johnson was
being offered in his case, and Johnson told him that the State was offering three
1
The judgment entry reflects that the hearing regarding counsel’s motion to withdraw was held on January
13, 2010, but that the written motion was actually filed the following day, as was the entry overruling this
motion.
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years but that he was willing to plead to a fourth degree felony with eighteen
months imprisonment. He further told Det. Ward that his first attorney lied to him
so he was able to get the judge to give him a new attorney but that the new
attorney was not doing anything for him and he simply wanted to get this case
resolved. He also offered to work with MARMET, but Det. Ward told him that
MARMET would be hesitant to do that because he was from Cleveland and that
Johnson would have to speak to his lawyer to see about arranging something. This
conversation lasted approximately three to five minutes. Shortly after this
conversation, the prosecutor contacted Johnson’s counsel to inform him of
Johnson’s statements to Det. Ward and sent him a copy of Det. Ward’s report of
the conversation the next day.
{¶13} The following week, one day before Johnson’s scheduled trial, a pre-
trial was held. At this time, Johnson’s attorney renewed his motion to withdraw as
counsel. Johnson’s attorney provided the trial court with a number of reasons for
the motion to withdraw, including informing the court that he spoke with Johnson
that weekend and that Johnson told him things about his conversation with Det.
Ward. However, when counsel spoke with Johnson on the morning of the pre-
trial, he gave counsel a different explanation of his conversation with Det. Ward.
As a result, Johnson’s counsel stated that he would have a problem in pursuing the
necessary motion to suppress Johnson’s statement because he was unsure of
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whether he could advance some of the arguments that Johnson now wanted him to
advance in light of his discussion with Johnson the preceding weekend, which
placed him in an awkward situation. Counsel then requested that the trial court
continue the trial and schedule a suppression hearing.
{¶14} Johnson informed the trial court that he wanted to hire his own
attorney from outside of Marion and that he could do so within two weeks. The
trial court then discussed with Johnson that he had previously indicated to the
court that he was going to privately retain counsel but never did and that if he did
not, then the court would have to appoint someone, which would put them all “in
the same boat” as before. (Hrg., 1/20/10, p. 11.) Johnson assured the court that he
would definitely hire his own attorney this time. The trial court granted the
request for a continuance, informed Johnson that a suppression hearing would be
set in approximately three weeks, and told Johnson that his new attorney would
need to enter his appearance as soon as he was retained so that the hearing could
be coordinated with the new attorney’s schedule. In the meantime, the trial court
directed Johnson’s second attorney to remain on the case until such time as new
counsel was retained and to file the motion to suppress.
{¶15} On January 25, 2010, Johnson’s second attorney filed a motion to
suppress. On January 28, 2010, the trial court scheduled a hearing on the motion
to suppress for February 25, 2010. On February 22, 2010, counsel for Johnson
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(still the second attorney) filed a motion to continue the suppression hearing
because he was currently in an aggravated murder trial in Franklin County
Common Pleas Court, which had been set for the week before but was moved to
the following week because of scheduling issues with that court. That same day,
counsel for Johnson also filed another motion to withdraw as counsel. In this
motion, counsel stated that Johnson was insisting upon testifying at the
suppression hearing and at trial, which would place counsel in a “very difficult
position that will make matters worse for the Defendant,” and that counsel
believed it was not only necessary but required that counsel for Johnson be
substituted.
{¶16} The trial court set a pre-trial date for March 8, 2010, and a trial date
for March 23, 2010, and the suppression hearing set for February 25, 2010, was
not conducted. On March 5, 2010, a third attorney entered his appearance on
behalf of Johnson. Consequently, the second attorney’s motion to withdraw as
counsel was granted. On March 15, 2010, Johnson’s new counsel filed a motion
to suppress his statements and a motion to compel discovery. In addition, counsel
filed a motion to continue the trial to allow for a suppression hearing to be held
and for full discovery to be provided by the State. On March 17, 2010, the trial
court granted the continuance. Two days later the court re-scheduled the trial date
to May 13, 2010. The suppression hearing was re-scheduled for April 22, 2010.
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However, on that day, the trial court sua sponte continued the suppression hearing
because the court was in a trial. The suppression hearing was then scheduled for
the following week.
{¶17} On April 29, 2010, the suppression hearing was held and the matter
was taken under advisement. On May 12, 2010, the trial court continued the trial
date because it was in another criminal trial and the court’s docket was
“congested.” On May 25, 2010, Johnson’s trial was scheduled for July 15, 2010.
On June 16, 2010, the trial court overruled Johnson’s motion to suppress the
statements he made to Det. Ward.2
{¶18} On July 15, 2010, Johnson filed a motion to dismiss his case due to a
violation of his right to a speedy trial. The trial court overruled this motion, and
Johnson’s jury trial began. The trial concluded the following day, and Johnson
was found guilty. At Johnson’s request, the court proceeded to sentencing and
sentenced Johnson to five years in prison. This appeal followed, and Johnson now
asserts six assignments of error for our review.
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT DENIED APPELLANT HIS RIGHT TO
A SPEEDY TRIAL CONTRARY TO THE UNITED STATES
AND OHIO CONSTITUTIONS AND R.C. 2945.71(C).
2
Johnson also requested that certain statements that he made during a hearing regarding his second
attorney’s motion to withdraw as counsel be suppressed. No evidence as to these statements was given at
the suppression hearing. After reviewing the motion to suppress, the trial court granted this portion of the
motion, and these statements were not used at trial and are not at issue in this appeal.
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SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
IN SUSTAINING APPELLEE’S MOTION IN LIMINE
WHICH EXCLUDED APPELLANT FROM PRESENTING
TESTIMONY OF MARMET’S PRIMARY OFFICER’S
DISCIPLINARY RECORD.
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
BY DENYING APPELLANT’S MOTION TO SUPPRESS HIS
STATEMENT, AFTER HAVING BEEN MIRANDIZED,
CONCERNING ADMISSIONS OF GUILTY.
FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
IN FAILING TO GIVE THE LESSER INCLUDED OFFENSE
INSTRUCTION FOR POSSESSION OF MARIJUANA.
FIFTH ASSIGNMENT OF ERROR
THE JURY’S GUILTY VERDICT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
SIXTH ASSIGNMENT OF ERROR
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.
{¶19} For ease of discussion, we elect to address some of the assignments
of error out of the order in which they appear.
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First Assignment of Error
{¶20} Johnson first asserts that the trial court erred when it overruled his
motion to dismiss for a violation of his right to a speedy trial. The Sixth
Amendment of the United States Constitution as applied to the States through the
Fourteenth Amendment, as well as Article I, Section 10 of the Ohio Constitution
dually afford a defendant the right to a speedy trial. In Ohio, the right to a speedy
trial is also statutorily defined. R.C. 2945.71-2945.73. Specifically, R.C.
2945.71(C)(2) states that a person who is charged with a felony must be brought to
trial within 270 days after he is arrested. The day of arrest does not count when
computing a speedy trial violation. See State v. Masters, 172 Ohio App.3d 666,
2007-Ohio-4229, 876 N.E.2d 1007, ¶ 12; Crim. R. 45(A). In addition, “each day
during which the accused is held in jail in lieu of bail on the pending charge shall
be counted as three days.” R.C. 2945.71(E).
{¶21} If a defendant who is charged with a felony is not brought to trial
within the required time period, the charge against him must be dismissed and the
prosecution is barred from pursuing “any further criminal proceedings against [the
defendant] based on the same conduct.” R.C. 2945.73(B), (D). Once a defendant
makes a prima facie showing that he was not brought to trial within the proper
period, the burden shifts to the State to demonstrate that sufficient time was tolled
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or extended under the statute. Masters, 2007-Ohio-4229, at ¶ 10, citing State v.
Butcher (1986), 27 Ohio St.3d 28, 31, 500 N.E.2d 1368. The time is tolled if the
defendant initiates certain actions in the court.
{¶22} Revised Code 2945.72 states, in pertinent part, that
[t]he time within which an accused must be brought to trial, or,
in the case of felony, to preliminary hearing and trial, may be
extended only by the following:
***
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by
the accused;
***
(H) The period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted
other than upon the accused’s own motion[.]
R.C. 2945.72(E), (F), (H). These tolling events “do not unconditionally extend
the time limit in which an accused must be brought to trial, but, rather, this limit
is ‘merely extended by the time necessary in light of the reason for the delay.’”
State v. Arrizola (1992), 79 Ohio App.3d 72, 75, 606 N.E.2d 1020, quoting
Committee Comment to H.B. 511. In reviewing “a speedy-trial issue, a court is
required to count the days of delay chargeable to either side and determine
whether the case was tried within applicable time limits.” State v. Sanchez, 110
Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 8.
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{¶23} Here, Johnson was arrested on August 24, 2009. Pursuant to R.C.
2945.71(C)(2), he had to be brought to trial by May 21, 2010, 270 days later.3 As
previously noted, Johnson was not brought to trial until July 15, 2010, 324 days
after his arrest. Consequently, he has made a prima facie showing that his speedy
trial rights were violated by 54 days. Thus, the next question is whether any
tolling events occurred. Our review of the record reveals that several tolling
events occurred, totaling in excess of 54 days.
{¶24} On September 9, 2009, Johnson filed a request for discovery, for a
bill of particulars, and a notice of intent to use evidence. The State provided
discovery and a notice of intent to use evidence on September 17, 2009. The Ohio
Supreme Court has acknowledged “the well-established rule that requests for
discovery and motions for bills of particulars are tolling events pursuant to R.C.
2945.72(E)[.]” State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d
159, ¶¶ 18-20. This was not an unreasonable amount of time to respond to these
requests, and the intervening eight days tolled the statutory time period, resulting
in a remaining overage of speedy-trial-time of 46 days.
3
The parties agree that the “triple count” provision of R.C. 2945.71(E) does not apply in this case because
Johnson had a probation holder placed on him from Cuyahoga County. See State v. Brown, 64 Ohio St.3d
476, 479, 1992-Ohio-96, 597 N.E.2d 97.
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{¶25} When the trial court re-scheduled Johnson’s November 2009 trial
date, following the State’s request for a continuance,4 the new trial date of January
21, 2010, was well within the 270-time period. In addition, the trial court noted
that this date was the first date available to all the parties and the trial court.
However, on November 19, 2009, Johnson’s first attorney filed a motion to
withdraw as counsel, thus tolling the time until the court could decide this motion.
See State v. Ward, 5th Dist. No. 03 CA 60, 2004-Ohio-2323.5 A hearing was held
on this matter on December 1, 2009. The trial court granted the request the
following day and appointed a new attorney for Johnson. This resulted in a
thirteen-day delay, chargeable to Johnson, resulting in a remaining overage of
speedy-trial-time of 33 days.
{¶26} At a pre-trial on January 20, 2010, Johnson’s second attorney moved
to withdraw as counsel. Among the number of reasons he provided, counsel
informed the court that Johnson had recently made a statement to MARMET on
January 14, 2010, that a suppression motion was necessary, and that he was in an
awkward situation to present such a motion given the different information that
Johnson had provided him that day from the information he provided the
4
Given the number of continuances necessitated by Johnson’s filings in this case, we decline to address the
reasonableness of any delays specifically caused by the State.
5
A number of appellate districts have held that a motion to withdraw as counsel for a defendant is a delay
chargeable to the defendant for speedy trial purposes. See State v. Matland, 7th Dist. No. 09-MA-115,
2010-Ohio-6585, ¶ 42; State v. Younker, 4th Dist. No. 07CA18, 2008-Ohio-6889, ¶ 21; State v. Allen, 8th
Dist. No. 90552, 2008-Ohio-5251, ¶ 14; State v. Kemper, 2nd Dist. Nos. 2002-CA-101, 2002-CA-102,
2004-Ohio-6055, ¶ 26.
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preceding weekend. Counsel then requested that the trial be continued and that a
suppression hearing be scheduled. When the court inquired of Johnson at that
time, he told the trial court that he wanted to retain his own counsel and could do
so within two weeks. The trial court granted the request for a continuance but did
not allow Johnson’s second attorney to withdraw until Johnson’s new attorney
entered an appearance. In addition, the trial court specifically informed Johnson
that he needed to have his new attorney contact the court as soon as possible and
that a suppression hearing would be set in approximately three weeks.
{¶27} Given the course of events, particularly Johnson’s recent statement to
MARMET and his desire to hire his own attorney, the granting of a continuance of
the trial was in order and chargeable to Johnson. Further, the motion to suppress
was filed five days later on January 25, 2010. The suppression hearing was then
scheduled for February 25, 2010, and the trial was scheduled for March 23, 2010.
These time frames were not unreasonable, and all of this time was properly
chargeable to Johnson pursuant to R.C. 2945.72(E) and (H), particularly in light of
the fact that the trial court notified Johnson that it could not schedule his
suppression hearing, and consequently his trial, for a number of weeks.
{¶28} However, on February 22, 2010, Johnson’s second attorney
requested a continuance of the suppression hearing because he was in an
aggravated murder trial in a different county, which had been moved from its
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original date because of scheduling issues in that county. Counsel also filed
another motion to withdraw that same day because of Johnson’s insistence that he
testify at the suppression hearing and that this placed counsel in a very difficult
position that would make matters worse for Johnson if he were to testify, causing
counsel to believe that he was required to withdraw. The continuance was granted
and a pre-trial was scheduled for March 8, 2010. Thus, these motions also tolled
the speedy-trial time.
{¶29} The amount of time from January 20, 2010, when Johnson’s second
attorney informed the court that he would be moving to suppress the statement
Johnson made to MARMET and Johnson told the court that he would be hiring his
own attorney, until the new date set for his trial, March 23, 2010, totaled 62
days—all chargeable to Johnson. This more than consumes the 33 days overage
for speedy trial purposes that remained after calculating the other delays
previously attributed to Johnson.
{¶30} Nevertheless, on March 5, 2010, Johnson’s third attorney entered his
appearance. This new attorney then filed a second motion to suppress on March
15, 2010, and requested that the March 23, 2010 trial date be continued so that a
suppression hearing could be conducted. The continuance was granted, and a
suppression hearing was scheduled for April 22, 2010, along with a re-scheduled
trial date of May 13, 2010. The number of days between the filing of the second
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motion to suppress and the date scheduled for the suppression hearing totaled 38
days, with an additional 21 days until the date scheduled for the trial (a total of 59
days). This total number of days was also chargeable to Johnson.
{¶31} In short, although the prosecution requested a continuance of the first
scheduled trial and Johnson objected, his first re-scheduled trial was set well
within the 270-day statutory time period. It was Johnson’s own actions and
problems arising between him and his previous attorneys that caused this case to
be repeatedly continued beyond the statutory time period. In fact, not until April
22, 2010, when the trial court sua sponte ordered a continuance of the suppression
hearing, did the trial court become the cause of a delay in bringing this case to
trial. Even then, the court noted that it was in a trial at that time, and it delayed the
suppression hearing by merely seven days, a reasonable continuance within the
confines of R.C. 2945.72(H). The court held the hearing at that time, but it had
not ruled upon the motion and was in another criminal trial when Johnson’s May
13, 2010 trial date arrived. The court then continued his trial and noted that it was
in another trial and that the court’s docket was “congested.” The court later ruled
on the motion on June 16, 2010, 93 days after the motion was filed by Johnson’s
latest attorney and 48 days after it heard evidence on the motion.
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{¶32} Notably, when the trial court overruled Johnson’s motion to dismiss
based on a speedy-trial violation, it specifically indicated that it had good reason
for the delay in ruling upon the motion to suppress, stating,
although it took the Court longer than it normally would for a
Motion to Suppress, in this particular case there was certainly
good reason for that. During the time that the Motion was
pending, this Court had two major trials, a five-day medical
malpractice trial in the month of April and a six-day aggravated
murder trial in this court in May which caused things to back up
as far as the other work that was involved in this court. The
Court has also dealt with very large number of felony filings in
this court. One of the highest filing rates in the State. This year
has been no different and that has piled up and caused delays as
well.
(Trial Trans., 7/15/10, p. 79.) We find that this explanation provided sufficient
reasons for the trial court’s delay in ruling upon this motion and that this delay
was not unreasonable.
{¶33} In light of the reasons for the various delays, and that the motions
filed on Johnson’s behalf tolled the speedy-trial time by more than 54 days, we
conclude that the trial court did not err in overruling his motion to dismiss for a
violation of his speedy trial right. Accordingly, the first assignment of error is
overruled.
Third Assignment of Error
{¶34} In his third assignment of error, Johnson maintains that the trial court
erred in overruling his motion to suppress his statement to Det. Ward in January,
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2010. Johnson contends that he invoked his right not to speak to law enforcement
when he was arrested in August of 2009, and that Det. Ward is the one who
initiated the interrogation in January, 2010, by asking Johnson, “What’s up.”
However, Johnson does not dispute that he asked C.O. Lehman to allow him to
speak with a MARMET officer.
{¶35} Initially, we note that appellate review of a decision on a motion to
suppress evidence presents a mixed question of law and fact. State v. Bressler, 3rd
Dist. No. 15-05-13, 2006-Ohio-611.
At a suppression hearing, the trial court assumes the role of trier
of fact and is in the best position to resolve factual questions and
evaluate the credibility of witnesses. State v. Carter, 72 Ohio
St.3d 545, 552, 651 N.E.2d 965, 1995-Ohio-104. When reviewing
a trial court’s decision on a motion to suppress, an appellate
court must uphold the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Dunlap, 73
Ohio St.3d 308, 314, 652 N.E.2d 988, 1995-Ohio-243. We must
defer to “the trial court’s findings of fact and rely on its ability
to evaluate the credibility of the witnesses,” and then
independently review whether the trial court applied the correct
legal standard. State v. Anderson (1995), 100 Ohio App.3d 688,
691, 654 N.E.2d 1034.
Bressler, 2006-Ohio-611, at ¶ 10.
{¶36} The United States Supreme Court has held that “an accused * * *
having expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further communication,
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exchanges, or conversations with the police.” Edwards v. Arizona (1981), 451
U.S. 477, 484-85; see, also, Oregon v. Bradshaw (1983), 462 U.S. 1039, 1044.
The accused “may also reinitiate such interrogation through the agency of a non-
attorney third party.” State v. Van Hook (1988), 39 Ohio St.3d 256, paragraph two
of the syllabus, 530 N.E.2d 883.
{¶37} If the accused invokes his right to counsel, his subsequent statements
may be used against him only if he “(a) initiated further discussions with the
police, and (b) knowingly and intelligently waived the right he had invoked.”
Smith v. Illinois (1984), 469 U.S. 91, 95, citing Edwards, 451 U.S. at 485-86, fn.
9. Whether the accused knowingly and intelligently waived his right to counsel
“depends ‘upon the particular facts and circumstances surrounding the case[.]’”
Bradshaw, 462 U.S. at 1046, quoting North Carolina v. Butler (1979), 441 U.S.
369, 374-75; see, also, State v. Brewer (1990), 48 Ohio St.3d 50, 58, 549 N.E.2d
491 (age, mentality, and prior criminal experience of the accused; the length,
intensity, and frequency of interrogation; the existence of physical deprivation or
mistreatment, and the existence of threat or inducement are all factors to be
considered). “The rationale of Edwards is that once a suspect indicates that ‘he is
not capable of undergoing [custodial] questioning without advice of counsel,’ ‘any
subsequent waiver that has come at the authorities’ behest, and not at the suspect’s
own instigation, is itself the product of the “inherently compelling pressures” and
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not the purely voluntary choice of the suspect.’” (Emphasis added.) Maryland v.
Shatzer (2010), ___ U.S. ____, 130 S.Ct. 1213, 1219, quoting Arizona v. Roberson
(1988), 486 U.S. 675, 681.
{¶38} Here, Det. Ward testified that he placed Johnson under arrest on
August 24, 2009, that he informed Johnson of his Miranda rights, and Johnson
invoked those rights. Thereafter, Johnson received court-appointed counsel.
However, C.O. Lehman testified that on January 14, 2010, Johnson told him that
he wanted to speak with a MARMET officer and that Johnson made this request
on his own without any sort of prompting by C.O. Lehman. C.O. Lehman was
aware that MARMET officers were in the booking area so he told Det. Utley and
Det. Ward that Johnson wanted to speak with one of them.
{¶39} Det. Ward testified that he and Det. Utley were at the jail for reasons
that in no way involved Johnson, but he told C.O. Lehman that he would speak
with Johnson at that time. Det. Ward further testified that he did not have any idea
what Johnson wanted. When Johnson was brought to the booking area, Det. Ward
then stated, “What’s up,” and Johnson proceeded to tell him that he had been in
jail for five months, that he was tired of being in jail, and that he wanted to resolve
the case. Johnson also explained the transaction with Hollar and that he was only
supposed to receive $200.00 for his part. At some point, Det. Ward told Johnson
that he did not know what the prosecutor was offering Johnson. Johnson then told
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Det. Ward that the State was offering three years but that he would be willing to
plead to a felony of the fourth degree and serve eighteen months. Johnson also
told him that he would be willing to work for MARMET, but Det. Ward told him
that MARMET would be hesitant to do that. Det. Ward testified that he did not
ask Johnson any questions but that at some point he stated that Johnson’s position
seemed to be that of the “middle man,” which Johnson confirmed. However, Det.
Ward testified the conversation mostly consisted of Johnson “rattling on.” (Supp.
Hrg., 4/29/10, pp. 20, 27-28.) He also testified that Johnson told him that he
thought his first court-appointed attorney lied to him, that he was able to have the
court appoint him a second attorney, but that he did not feel that his new attorney
was doing anything for him. This conversation lasted approximately three to five
minutes. Neither the testimony of C.O. Lehman nor Det. Ward was disputed.
{¶40} Under these circumstances, we do not find that the Edwards rule was
violated. Johnson requested, via a non-attorney third party, to speak with a
MARMET officer. Although Det. Ward was the first to speak, stating, “What’s
up,” he did not know what Johnson wanted. We do not find that this initiated the
discussion between Johnson and Det. Ward. Rather, Johnson initiated the further
communication, exchange, or conversation with Det. Ward when he told C.O.
Lehman that he “wanted to talk to MARMET.” Det. Ward’s “question” was made
simply in response to Johnson’s request to speak with him and was not an attempt
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to elicit an incriminating statement. In addition, Det. Ward’s later statements to
Johnson that he did not know what the State was offering Johnson and that
Johnson’s position seemed to be that of “middle man” both occurred after Johnson
initiated the contact, told Det. Ward about his desire to resolve his case, and
confessed to offering to sell marijuana to Hollar. Thus, these statements did not
violate the Edwards rule either. See Edwards, 451 U.S. at 486, fn. 9 (noting that
“in the course of a meeting initiated by the accused, the conversation is not wholly
one-sided, it is likely that the officers will say or do something that clearly would
be ‘interrogation.’ In that event, the question would be whether a valid waiver of
the right to counsel and the right to silence had occurred”).
{¶41} As to the whether Johnson knowingly and voluntarily waived the
right to counsel that he had previously invoked, we find that the evidence
demonstrated a valid waiver of this right. Although Johnson invoked his right to
an attorney, having requested and received an initial attorney and then a new
attorney after being unsatisfied with his first attorney’s representation, he clearly
was electing to speak with law enforcement without the benefit of counsel, who he
did not believe was adequately representing his interest, in an effort to resolve his
case on his own. In fact, Johnson initiated this contact with MARMET one day
after he was in court with his second attorney, who had requested that he be
permitted to withdraw as Johnson’s counsel because of significant disagreements
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between Johnson and himself and Johnson’s desire for a new attorney. Thus,
Johnson knew full well of his right to counsel and was knowingly and voluntarily
choosing to speak with Det. Ward without counsel. Further, Johnson had prior
criminal experience as evidenced by the holder placed on him from Cuyahoga
County for a probation violation. There was also no evidence that this three to
five minute conversation was a lengthy or intense discussion or that during this
time Johnson was mistreated, threatened, or physically deprived. Additionally, the
trial court had spoken with Johnson on previous occasions and was able to
ascertain his mental abilities, including the ability to waive his previously invoked
right to counsel, and the record is devoid of any evidence that Johnson was limited
in his cognitive abilities. Therefore, the trial court did not err in overruling
Johnson’s motion to suppress, and the third assignment of error is overruled.
Fifth Assignment of Error
{¶42} In Johnson’s fifth assignment of error, he asserts that the jury’s
verdict was against the manifest weight of the evidence. An appellate court’s
function when reviewing the weight of the evidence is to determine whether the
greater amount of credible evidence supports the verdict. State v. Thompkins, 78
Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. In reviewing whether the
trial court’s judgment was against the weight of the evidence, the appellate court
sits as a “thirteenth juror” and examines the conflicting testimony. Id. In doing
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so, this Court must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the factfinder “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. Andrews, 3rd Dist. No. 1-05-70, 2006-Ohio-
3764, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717;
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶43} In order to prove that Johnson committed the offense of trafficking in
marijuana as charged in the indictment, the State had to prove beyond a reasonable
doubt that Johnson sold or offered to sell marijuana in an amount exceeding 1,000
grams but less than 5,000 grams. See R.C. 2925.03(A)(1), (C)(3)(d).
{¶44} At trial, the State presented the testimony of Hollar, who testified
that he acted as a confidential informant for MARMET in order to receive a lesser
charge and, consequently, a lesser penalty for having been in possession of four
pounds of marijuana. Hollar testified that he told MARMET officers that he could
arrange to purchase six to eight pounds of marijuana from Johnson, who had sold
to him on previous occasions. Hollar further testified that beginning on August
18, 2009, he and Johnson made a number of calls to one another and that they
arranged for Johnson to sell six pounds of marijuana to him at a price of $1250.00
per pound. This transaction was supposed to occur initially on August 18, 2009,
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with Johnson bringing the marijuana from Cleveland to Hollar in Marion but that
Johnson cancelled that delivery. Another transaction was arranged the next day,
but that also did not happen. After a number of calls, the transaction was
scheduled for August 24, 2009.
{¶45} Hollar and MARMET Detective Dan Ice both testified that after
making the arrangements for Johnson to deliver the marijuana to Marion on the
24th, they spent the next four to five hours with one another in the Rollerama
parking lot, waiting on Johnson to arrive. During this time, Hollar spoke with
Johnson a few times to find out where he was, when he expected to arrive in
Marion, and where they would meet to exchange the marijuana. Also during this
time, Det. Ice was in one vehicle and Hollar and his girlfriend were in another, but
they exited their vehicles from time to time to smoke cigarettes and drink soda
pop. Det. Ice testified that whenever Hollar called Johnson he stood next to
Hollar’s car door and at no point did he observe marijuana in that vehicle. Hollar
also testified that there was no marijuana in his girlfriend’s vehicle. Additionally,
Det. Ice testified that Hollar did not appear to be intoxicated or under the influence
of drugs, and Hollar testified that he was not using drugs or alcohol at the time of
the transaction.
{¶46} Once Johnson told Hollar that he was in Marion and they arranged to
meet at the Lowe’s parking lot, Det. Ice followed Hollar and his girlfriend, who
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was driving because Hollar did not a valid driver’s license, to Lowe’s and parked
at a distance from them. Hollar testified that Johnson entered his girlfriend’s car
carrying a bag, that Johnson showed him the marijuana that was inside the bag,
that his girlfriend exited the car, and that MARMET then swarmed the vehicle.
{¶47} Det. Ice, Det. Ward, and Officer Robert Musser each testified that
they were in positions in the Lowe’s parking lot that allowed them to view
Hollar’s vehicle. They each witnessed a green conversion van park next to
Hollar’s vehicle. They then saw Johnson exit the van carrying a white bag and
enter Hollar’s car. They also saw Hollar’s girlfriend exit the car shortly thereafter
and open its trunk, the sign that MARMET officers should converge on the car.
{¶48} Detectives Ward and Ice were the first to the car. Johnson was
removed from the rear seat of the vehicle and the white bag that he brought into
the car with him was found in the back seat. Inside the white bag was a brown
paper bag, and inside of it were six re-sealable bags containing what appeared to
be marijuana. The detectives removed the white bag from the car and then placed
its contents on the trunk of the car. The substance found in these bags was later
tested and weighed by Det. Utley and found to total 2,433.80 grams of marijuana.
Det. Utley’s report of the results of the testing she conducted were admitted into
evidence without objection as State’s Exhibit 8.
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{¶49} The events that occurred in the Lowe’s parking lot were all video
recorded by Off. Musser, who was parked in the lot in a separate vehicle. In
addition, a number of calls between Hollar and Johnson on August 18, 19, and 24,
2009, were recorded. Both the DVD of the transaction and the CD recordings of
the calls were played for the jury and admitted into evidence. On these calls, there
are two distinct voices, one that is Hollar’s and the other identified by Hollar as
that of Johnson.
{¶50} The calls on the 18th, admitted as State’s Exhibit 1, reflect that Hollar
called Johnson and began discussing that things have “dried up around here” and
that he needed to “make a move.” Johnson invites Hollar to come to Cleveland,
but Hollar tells him that he has “no L’s,” meaning that he does not have a license.
After some discussion, Hollar asks Johnson how much a “six-pack” will cost him
and Johnson explains that for him to drive to Marion is going to cost Hollar “some
numbers” and indicates that it will be “twelve fish.” Hollar tells Johnson that he is
willing to pay because, again, things have “dried up around here.” Johnson then
agrees to come to Marion that day. However, Johnson later informed Hollar that
he could not come that day. Hollar testified that “six-pack” means six pounds of
marijuana and that “twelve fish” means a price of $1250 per pound. Evident from
these recordings and the testimony of Hollar about the slang terms used in these
calls, is that Johnson is the one offering to sell and that Hollar is the buyer.
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{¶51} The calls on the 24th, admitted as State’s Exhibit 3, also reflect that
Johnson is the seller and Hollar is the buyer. For example, as Hollar is
questioning Johnson about his whereabouts and when he is going to arrive in
Marion, Johnson says, “Don’t give people my money,” and Hollar tells him that
people are calling him wanting to know “when it’s gonna be there.” State’s
Exhibit 3 also contains a recording of the conversation that transpired once
Johnson entered Hollar’s car at the Lowe’s parking lot. On this recording,
Johnson and Hollar can be heard talking about what is in the bag. More
specifically, Hollar comments that the contents of the bags are not “chunky,”
which Off. Musser testified was a way of indicating that this is a higher quality of
marijuana, and Johnson says, “I ain’t gonna charge you no different.”
{¶52} As for the video recording, admitted as State’s Exhibit 4,6 Det. Ice,
Det. Ward, and Off. Musser testified that it accurately depicted what occurred in
the parking lot of Lowe’s on August 24, 2009. This video shows a white Lincoln,
driven by Hollar’s girlfriend, parked in a parking lot. Parked next to the passenger
side of this vehicle is a green conversion van. An officer’s voice is heard telling
other MARMET officers that the suspect has exited the green van and is walking
around it. Immediately thereafter, Johnson is seen walking around the back of the
van, between the two vehicles, and then entering the white Lincoln through the
6
A shorter “clip” of this video was also admitted as State’s Exhibit 9. Both were played for the jury.
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Case No. 9-10-47
rear passenger door. Shortly after Johnson enters the vehicle, Hollar’s girlfriend
exits the same vehicle and opens the trunk. MARMET officers then converge on
the vehicle, order Johnson out, and order the occupants out of the green van. The
video also shows the white bag located in the rear of the Lincoln and the
detectives emptying its contents on the trunk of the car, revealing six clear plastic
re-sealable bags containing what appears to be marijuana.
{¶53} In addition to these recordings, the State also presented the testimony
of Det. Ward regarding Johnson’s statements to him on January 14, 2010, while in
jail. As previously discussed, Johnson admitted to Det. Ward that he came to
Marion to sell the marijuana to Hollar. In addition, Det. Ward testified that
Johnson told him that he did not have any money, that Hollar called him to buy
some marijuana, and that he called around for marijuana and then brought it to
Marion to sell it to Hollar so that he could make $200.00.
{¶54} After reviewing all of this evidence, we cannot conclude 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. To the contrary, the evidence
as outlined clearly supports the jury’s finding of guilt. Not only did the recording
of calls placed on August 18, 2009, demonstrate that Johnson is the one offering to
sell six pounds of marijuana to Hollar, which would have been sufficient for a
finding of guilt for trafficking in marijuana, but the DVD recording of Johnson
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actually delivering over 2,000 grams of marijuana to Hollar overwhelmingly
demonstrates that Johnson was guilty of trafficking in marijuana as charged in the
indictment. Therefore, the fifth assignment of error is overruled.
Fourth Assignment of Error
{¶55} Johnson next contends that the trial court erred in failing to provide
the jury with an instruction for the lesser-included offense of possession of
marijuana rather than trafficking in marijuana. The Ohio Supreme Court has held
that
the evidence in a particular case is relevant in determining
whether a trial judge should instruct the jury on the lesser
included offense. If the evidence is such that a jury could
reasonably find the defendant not guilty of the charged offense,
but could convict the defendant of the lesser included offense,
then the judge should instruct the jury on the lesser offense.
City of Shaker Hts. v. Mosley, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d
859, ¶ 11, citing State v. Shane (1992), 63 Ohio St.3d 630, 632-633, 590 N.E.2d
272. “[I]n determining whether an offense is a lesser included offense of another,
a court shall consider whether one offense carries a greater penalty than the other,
whether some element of the greater offense is not required to prove commission
of the lesser offense, and whether the greater offense as statutorily defined cannot
be committed without the lesser offense as statutorily defined also being
committed.” State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d
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Case No. 9-10-47
889, ¶ 26 (modifying State v. Deem (1988), 40 Ohio St.3d 205, paragraph three of
the syllabus, 533 N.E.2d 294).
{¶56} Johnson was charged with trafficking in marijuana in excess of 1,000
grams but less than 5,000 grams, a felony of the third degree. See R.C.
2925.03(A)(1), (C)(3)(d). The undisputed evidence revealed that the amount of
marijuana seized by MARMET during this transaction totaled 2,433.80 grams.
Assuming arguendo that the evidence presented to the jury could have reasonably
resulted in a finding of not guilty as to trafficking in marijuana but guilty as to
possession of marijuana, the amount involved would render a possession charge a
felony of the third degree as well. See R.C. 2925.11(A), (C)(3)(d). Both of these
offenses carry the same penalty. See R.C. 2929.14(A)(3). Thus, the first prong of
Evans is not satisfied in this instance as possession of marijuana in excess of 1,000
grams but less than 5,000 grams is not a lesser included offense of trafficking in
marijuana in this amount. Accordingly, the fourth assignment of error is
overruled.
Second Assignment of Error
{¶57} Johnson contends in his second assignment of error that the trial
court erred when it granted the State’s motion in limine to exclude evidence
contained in Off. Musser’s personnel file. More specifically, Johnson asserts that
Off. Musser, the MARMET officer who arranged for Hollar to be a confidential
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informant, had been disciplined and removed from MARMET for taking
photographs of someone’s unclothed wife from a cellular phone and transmitting
these photos to others.7 Johnson also asserts that Off. Musser made
misrepresentations about this incident to other officers and asked other officers to
be dishonest in their statements during the investigation of the taking of these
photos. Johnson contends that he should have been permitted to cross-examine
Off. Musser about this incident because it was for the purpose of attacking Off.
Musser’s character for truthfulness.
{¶58} Unless otherwise excluded by rule, statute, or constitutional
provision, “[a]ll relevant evidence is admissible.” Evid.R. 402. However, the
admission of evidence is left to the discretion of the trial court. State v. Awkal, 76
Ohio St.3d 324, 1996-Ohio-395, 667 N.E.2d 960. A trial judge “must always bear
in mind his or her responsibility to weigh the probative value of any relevant
evidence against the danger of unfair prejudice,” confusion of the issues, or of
misleading the jury. State v. Boggs (1992), 63 Ohio St.3d 418, 423-424, 588
N.E.2d 813; Evid.R. 403(A).
{¶59} An appellate court will not disturb evidentiary rulings absent an
abuse of discretion that produces a material prejudice to the aggrieved party. State
7
The record is unclear about the particular circumstances at issue. More specifically, it is unclear whether
these were photographs of Off. Musser’s wife that were on his cellular phone and he allegedly transmitted
them to others or if these were photographs of another officer’s wife on the other officer’s cellular phone
that allegedly Off. Musser then took and transmitted to others.
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Case No. 9-10-47
v. Roberts, 156 Ohio App.3d 352, 2004-Ohio-962, 805 N.E.2d 594, ¶ 14. An
abuse of discretion is more than an error of judgment; it means that the trial court
was unreasonable, arbitrary, or unconscionable in reaching its ruling. State v.
Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (citations omitted).
{¶60} Evidence Rule 404(A)(3) provides, “[e]vidence of the character of a
witness on the issue of credibility is admissible as provided in Rules 607, 608, and
609.” Evidence Rule 608(B) provides, in pertinent part:
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness,
other than conviction of crime as provided in Evid. R. 609, may
not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if clearly probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness’s character for truthfulness or
untruthfulness[.]
{¶61} In this case, Johnson’s attorney did not present Off. Musser’s
personnel file to the court to demonstrate that the information he was seeking to
inquire about was contained therein. Counsel simply informed the court that the
file contained this information. However, he did not detail exactly what Off.
Musser’s misrepresentations were, what Off. Musser specifically asked of the
other officers, or whether Off. Musser was reprimanded for the
misrepresentations, the transmission of the photographs, or both. Thus, the precise
information that may or may not have been probative of Off. Musser’s character
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Case No. 9-10-47
for truthfulness or untruthfulness was not before the trial court and is not before
us.
{¶62} Nevertheless, the representations of Johnson’s counsel, as presented,
that Off. Musser took photographs of someone’s naked wife and then disseminated
those photographs to other people is not probative of one’s character for
truthfulness or untruthfulness. It is, however, potentially inflammatory and could
lead jurors to think poorly of Off. Musser’s character in general. Thus, allowing
Johnson to cross-examine Off. Musser on this issue could have easily led to unfair
prejudice against a State’s witness, and the trial court did not abuse its discretion
in refusing to permit this line of questioning. However, whether Off. Musser
misrepresented information to other officers during the investigation of this matter
and asked other officers to be dishonest in that investigation would be probative of
his character for truthfulness or untruthfulness. Therefore, this would have been a
permissible subject for cross-examination.
{¶63} While this was a permissible subject, we are mindful that in order to
find that this was reversible error we must conclude that the trial court’s judgment
was unreasonable, arbitrary, or unconscionable, not simply that the trial court
erred in its judgment. In order to put Off. Musser’s alleged misrepresentations and
requests for other officers to be dishonest into context and to address his character
for truthfulness or untruthfulness, the defense would have had to ask questions that
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revealed the underlying circumstances in this investigation. As previously
discussed, this information carried a danger of unfair prejudice. Further, the
probative value of Off. Musser’s character for truthfulness was not highly
significant given the overall state of the evidence against Johnson. More
specifically, this was not a case of “he said, she said,” wherein Off. Musser’s
credibility was essential because the State’s proof consisted solely of his “word.”
Rather, the State had the video and audio evidence, Hollar’s testimony, Johnson’s
admissions to Det. Ward, and the additional testimony as to the events of August
24, 2009, from Det. Ward and Det. Ice. Thus, after weighing the probative value
of this evidence against the danger of unfair prejudice, we cannot find that the trial
court’s decision to prohibit this line of questioning was unreasonable.
{¶64} Even if we assume arguendo that the trial court erred in preventing
counsel from engaging in this line of questioning, any such error was harmless.
An error in excluding evidence is harmless “if such evidence would not negate the
overwhelming proof of defendant’s guilt.” State v. Gilmore (1986), 28 Ohio St.3d
190, 193, 503 N.E.2d 147; State v. Williams (1983), 6 Ohio St.3d 281, paragraph
six of the syllabus, 452 N.E.2d 1323. As previously discussed, the evidence at
trial overwhelmingly proved Johnson’s guilt. Even if counsel for Johnson was
permitted to cross-examine Off. Musser about misrepresenting the nude
photograph incident and asking other officers to be dishonest about the incident as
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Case No. 9-10-47
well, there was no indication whatsoever that the recordings of the phone calls or
of the Lowe’s parking lot transaction were in some way falsified. In fact, both
Det. Ice and Det. Ward testified that the video of the parking lot accurately
reflected what occurred that night. As noted, the first phone call alone was
sufficient evidence of Johnson’s guilt, and the actual delivery of the marijuana by
Johnson and his confession to Det. Ward that he sold marijuana to Hollar in order
to earn $200.00 were, essentially, conclusive. Thus, any character for
untruthfulness of Off. Musser that may have been raised by this line of cross-
examination would not negate all of the other evidence. Accordingly, the second
assignment of error is overruled.
Sixth Assignment of Error
{¶65} In his sixth assignment of error, Johnson asserts that he was denied
his right to the effective assistance of counsel. More particularly, Johnson
maintains that counsel was ineffective as a result of an accumulation of errors: (1)
failing to object to Hollar’s testimony that Johnson had previously sold him drugs;
(2) failing to object to a number of leading questions asked of Hollar and Det.
Ward during their re-direct examinations; (3) eliciting testimony from Det. Ward
that counsel previously sought to suppress regarding Johnson’s willingness to
plead to a fourth degree felony; (4) failing to object to the playing of State’s
Exhibit 9, a short video clip from the recording of the parking lot, when its
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Case No. 9-10-47
contents were not the subject of cross-examination; (5) failing to object to Det. Ice
being re-called by the State to testify; (6) failing to challenge the State’s evidence
regarding the testing and weighing of the marijuana; and (7) arguing to the jury
that Johnson did not sell the marijuana but that he was there to purchase it.
{¶66} Initially we note that attorneys licensed by the State of Ohio are
presumed to provide competent representation. State v. Hoffman (1998), 129 Ohio
App.3d 403, 407, 717 N.E.2d 1149. An ineffective assistance of counsel claim
requires proof that trial counsel’s performance fell below objective standards of
reasonable representation and that the defendant was prejudiced as a result. State
v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus, 538 N.E.2d
373. In reviewing such a claim, courts are to afford a high level of deference to
the performance of trial counsel. Id. at 142, 538 N.E.2d 373. The defendant must
show that counsel’s actions were not trial strategies prompted by reasonable
professional judgment. Strickland v. Washington (1984), 466 U.S. 668, 687; see,
also, State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343, 693 N.E.2d 267.
Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 1995-
Ohio-104, 651 N.E.2d 965.
{¶67} Also, in order to show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must prove that there exists a
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reasonable probability that, but for counsel’s errors, the outcome at trial or in his
legal proceedings would have been different. Bradley, 42 Ohio St. 3d at paragraph
three of the syllabus. “Reasonable probability” is a probability sufficient to
undermine confidence in the result. Id. at 142.
{¶68} As to Johnson’s first assertion of ineffective assistance regarding
counsel’s failure to object to Hollar’s testimony that Johnson previously sold
drugs to him, a review of the record reveals that this assertion is without merit
because counsel did object to this line of questioning three times. As to the second
contention of Johnson regarding the failure to object to the leading questions asked
during re-direct examination, we agree that a number of leading questions were
asked of these witnesses on re-direct and that “[l]eading questions should not be
used on the direct examination of a witness except as may be necessary to develop
the witness’ testimony[,]” Evid.R. 611(C). However, these questions were not
during their direct examination, did not introduce matters not previously testified
to by these witnesses through the use of non-leading questions during their direct
examination, and were used largely as a way to develop their testimony quickly,
summarize their previous testimony, and either confirm or deny it. Further, the
evidence was such that there was not a reasonable probability that but for these
leading questions being allowed the outcome of the trial would have been
different.
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{¶69} As for the remaining contentions of Johnson, each of these involves
matters of trial strategy. For instance, after Det. Ward testified about Johnson’s
admissions to him, counsel for Johnson questioned Det. Ward about Johnson’s
desire to limit his exposure to prison through a possible plea bargain regardless of
whether the charges against him were accurate in order to avoid running the risk
associated with a jury trial. This served as an attempt to explain why Johnson may
have made the statements that he did to Det. Ward and that he did so even though
the charges may not have been accurate. Further, the stipulation about the
marijuana allowed the defense to portray an air of candor before the jury,
prevented additional prosecution witnesses from having to testify in court, and
there was no indication that anything improper occurred in the testing and
weighing of the marijuana. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,
880 N.E.2d 31, ¶ 347. Thus, while these strategies may not have ultimately been
successful, they did not fall below objective standards of reasonable
representation.
{¶70} Moreover, none of these perceived errors or the accumulation thereof
would have resulted in a different outcome if they had not occurred. Once again,
the evidence against Johnson was overwhelming. Thus, we cannot conclude that
there exists a reasonable probability that, but for counsel’s errors, the outcome at
trial would have been different, and the sixth assignment of error is overruled.
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{¶71} For these reasons, the judgment of the Common Pleas Court of
Marion County, Ohio, is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, JJ., concur.
/jlr
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