State v. Lavender

[Cite as State v. Lavender, 2019-Ohio-5352.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180003
TRIAL NO. B-1700948
Plaintiff-Appellee, :
vs. : O P I N I O N.
ANDREW LAVENDER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 27, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Wendy R. Calaway, for Defendant-Appellant.
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M OCK , Presiding Judge.
{¶1} In eight assignments of error, defendant-appellant Andrew Lavender
claims that he was improperly convicted of aggravated murder and sentenced to life
in prison without the possibility of parole. For the reasons set forth below, we
disagree with those assertions and affirm the judgment of the trial court.
The Killing of Ceran Lipscomb
{¶2} During the evening of August 1, 2014, Ceran Lipscomb was shot and
killed by an individual using a .22-caliber weapon. A man named Ramon Davis was
using a portable restroom in the area when the shots were fired. He fled from the
restroom and called 911. He told the operator that he had seen someone running
from the body. He described the man as between 40 and 50 years old, five feet eight
inches tall, and slender. He said that the man had on purple jogging pants, a black
top, and a cap, and had a mustache or goatee. Another individual, 15-year-old
Dennis Coulter was outside his apartment with his cousin when the incident
occurred. He told police that he saw the shooter run away from the body and down
an alley behind the apartment buildings. He said he saw the man two different
times: once as he was running from the body, and again as he was running in the
alley behind the apartments. Coulter told police that he had seen the man before in
the neighborhood but did not know him or know his name.
{¶3} A few days after the shooting, Coulter worked with a sketch artist to
generate an image of the shooter’s face. Police had little more to go on until
Domingo Johnson was arrested on a number of drug-related charges. He contacted
the investigating detectives and informed them that he had information on the
Lipscomb killing. He told police that shortly before the killing, he was in an
apartment when he overheard a young man he knew as “Shooter” bragging about
how he was taking a hit on “Little Charlie’s Brother.” The name “Little Charlie” was a
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name associated with Lipscomb’s brother. He also said that Shooter had a small
caliber revolver. Using social media, detectives were able to connect the name
“Shooter” with defendant-appellant Andrew Lavender. Johnson identified Lavender
as the person he overheard talking about the hit. The police requested a photo array
from the Hamilton County Juvenile Court, since Lavender was 16 years old at the
time, and presented the photo array to Coulter. Coulter was shown the images one at
a time. As Coulter was going through each image, he initially said that another man
pictured looked like the shooter. As he continued though the rest, however, he then
reached Lavender’s picture and positively identified him.
{¶4} Lavender was arrested and police gained access to his cellular phone
data. Of significance, police retrieved thousands of text messages from his phone
going back months before the shooting. The vast majority of these text messages
were introduced at trial by the state, for the purpose of attempting to show
Lavender’s growing desperation with regard to money, which lead Lavender to agree
to kill Lipscomb for hire. After conducting a hearing on the matter, the trial court
admitted the vast majority of these text messages for the limited purpose of allowing
the state to show Lavender’s motivation for the killings in his growing desperation
with regard to money during the months before Lipscomb’s death.
{¶5} Because Lavender was 16 when he committed the offense, his case
was first brought in Hamilton County Juvenile Court, in the case numbered 14-7191.
The state filed a motion to have Lavender bound over to the adult common pleas
docket. After determining probable cause, the juvenile court judge failed to conduct
an amenability hearing, believing that the bindover to the adult court was
mandatory. Lavender was then indicted in the case numbered B-1405471, and
charged with one count of aggravated murder, in violation of R.C. 2903.01(B), and
one count of aggravated murder, in violation of R.C. 2903.02(B). Both counts
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included firearm specifications. The case proceeded for some time, including the
briefing, arguing, and a decision on a motion to suppress the results of the photo
array. The case remained pending for three years before the problem with the
bindover was discovered. The state then dismissed the case and refiled in the
juvenile court. The juvenile court conducted new hearings, this time conducting an
amenability hearing. At the conclusion of those hearings, the case was again
transferred to the general division of the common pleas court. Lavender was again
indicted for two counts of aggravated murder. The case proceeded to a two-week
jury trial, after which Lavender was found guilty on both counts and all
specifications. On the first count, Lavender was sentenced to life in prison without
the possibility of parole, with an additional three years for the gun specification. The
second count was merged with the first. In eight assignments of error, Lavender now
appeals.
Admission of Evidence
{¶6} In his first assignment of error, Lavender claims that the trial court
erred when it admitted certain evidence. In particular, he claims that the admission
of a photograph from Facebook showing him posing with weapons was improper.
He also claims that the admission of his text messages was improper. And he finally
claims that it was improper for the court to allow an officer to testify about how
contract killings are conducted.
The Photograph
{¶7} In the photograph Lavender challenges, he is seen pointing one gun at
the camera while holding another gun at his side. Neither side has argued that the
gun Lavender is pointing at the camera is related to the case. But the state argues
that the gun in his other hand appears to be a small-caliber revolver. Lipscomb was
killed by a .22-caliber weapon, and the state theorized that the weapon was a
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revolver because no casings were found at the crime scene A revolver would retain
its bullet casings in its cylinder, while a semi-automatic pistol would eject the casing
after firing each round. The state’s expert could not confirm that the shots were fired
from a revolver but did say that the physical evidence would be consistent with that.
He said that it was “very common to find .22 caliber ammunition chambered in
revolvers.” When shown the photograph, he said that “based on what I can see it
certainly appears to be most consistent in physical shape with a revolver simply
because of the width versus the length, and it looks like basically a small-sized
handgun.” He further said that “it looks like a very small revolver and you will find a
lot of .22 caliber handguns in a small sized frame handgun.”
{¶8} Prior to the testimony from the expert about the weapon, the trial
court conducted a hearing. Initially, there were three photographs proposed for
admission by the state. The other photographs included different weapons. Citing
State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, Lavender
argued that the photographs that showed Lavender with another weapon and
another person holding a revolver with Lavender present were unduly prejudicial.
After hearing the argument, the trial court allowed only the photograph of Lavender
with the revolver in his hand concluding, “assuming a proper foundation is laid and
relying on the prosecutor to establish the fact that Mr. Lattyak would testify that it
was a revolver and that it was a .22, and if he’s shown the photograph of 16(A), which
includes the revolver in the hand of what purports to be the defendant, that that [sic]
would be admissible.” During the testimony, clarifying rulings were made. First, the
trial court allowed the state to continue questioning about the photograph “if the
foundation was laid or if it was at least established that the revolver could have been
the type consistent with .22 bullet that was recovered [sic].” The trial court also
ruled that when the witness seemed hesitant to identify the type of handgun in the
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photograph, the state could lay “additional foundation * * * such that if the expert
would say that the revolver would be consistent with the type of gun used for the
bullet recovered.”
{¶9} The admission of evidence is within the sound discretion of the trial
court. See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶
61. We will not disturb a trial court’s ruling on evidentiary issues on appeal absent
an abuse of discretion and proof of material prejudice. State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181; State v. Belton, 149 Ohio St.3d 165,
2016-Ohio-1581, 74 N.E.3d 319, ¶ 116.
{¶10} The term “abuse of discretion” connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Body Power, Inc. v. Mansour, 1st Dist. Hamilton No. C-130479,
2014-Ohio-1264, ¶ 28, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 291, 450
N.E.2d 1140 (1983). Most cases will fall within the “unreasonable” prong of
discretionary decisions, as few judges issue decisions that are unconscionable or
arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990). A decision is unreasonable if
there is no sound reasoning process that would support that decision.
It is not enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.
Id. “An abuse of discretion implies that a decision is both without a reasonable basis
and is clearly wrong.” Aetna Better Health, Inc. v. Colbert, 10th Dist. Franklin No.
12AP-720, 2012-Ohio-6206, ¶ 21, citing Hartzog v. Ohio State Univ., 27 Ohio App.3d
214, 500 N.E.2d 362 (10th Dist.1985).
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{¶11} The state’s theory, based on the lack of casing at the scene, was that
the .22-caliber bullet that killed Lipscomb came from a revolver. Further, Coulter
testified that he had seen the shooter wrap the small handgun in his shirt as he ran
away, indicating that a rifle was not involved. The expert witness testified that the
photograph was consistent with a .22-caliber handgun, and Johnson testified that he
had seen Lavender with a small revolver prior to the shooting.
{¶12} “Logically, all evidence presented by a prosecutor is prejudicial, but
not all evidence unfairly prejudices a defendant.” State v. Wright, 48 Ohio St.3d 5,
8, 548 N.E.2d 923 (1990). Courts have said that the admission of a photograph of a
defendant with a weapon is appropriate when it is similar to one seen used in a
crime. See, e.g., State v. Lee, 1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 12.
Similarly, the trial court here allowed the admission of the photograph of a handgun
that was similar to the type of weapon that law enforcement believed was used in the
case and had been tied to Lavender through Johnson. Lavender was able to then
attack whether that asserted connection was credible, which he did through counsel’s
effective cross-examination and closing argument.
{¶13} In this case, we cannot conclude that the decision of the trial court
was “without a reasonable basis” or “clearly wrong.” We conclude that the trial court
had a reasonable basis to determine that the photograph was relevant, admissible,
and that the probative value of the photograph was not substantially outweighed by
undue prejudice.
Text Messages
{¶14} Lavender makes several intertwined arguments related to the text
messages that were admitted at trial. He claims that the admission of the entire
record of the text conversations covering the period of several months prior to the
killing was improper as “hundreds of the texts were completely irrelevant.” He then
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argues that some of the text messages violated Evid.R. 403, and others vi0lated
Evid.R. 404. In order to analyze this portion of his argument, however, we must give
a detailed account of how the text messages were handled during the course of the
trial.
{¶15} Detective Gregory Gehring was the state’s witness through whom the
text messages were admitted. He was the officer who worked with employees of
Cincinnati Bell to obtain the records, though the records custodian from Cincinnati
Bell testified for authentication purposes. It is clear that both sides understood that
the admission and use of these text messages was going to be a significant issue in
the case from an evidentiary perspective. So much so that the trial court held a
hearing before Gehring testified to try and determine as many of the legal issues as
possible prior to the time the exhibits would be admitted.
{¶16} The text messages were admitted in various forms. First, there was
an overall set of two large binders which contained every text message from or to
Lavender from April 26 to August 21, 2014 (hereinafter “the comprehensive set”). In
addition to the comprehensive set, the state also had a smaller binder of messages
that law enforcement was able to retrieve from the cell phone’s memory (hereinafter
“the memory set”). All of these messages were also contained in the comprehensive
set. And in addition to that, the state had a series of specific exhibits (hereinafter
“the 15 series”) that it had pulled from the comprehensive set for purposes of specific
presentation to the jury during the trial.
{¶17} As the hearing began, the trial court pressed the state on the need to
admit the comprehensive set to the jury if it was planning on focusing on a small
fraction of the total. The state responded that “we were going to do that because it’s
the records, and then from that book we were going to tell the jury we have those
records, which are pages out of that book on different dates indicating different
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conversations.” The state later said that “the problem, too, with these records,
Judge, is he’s making conversations with different people that have different
information about him. When he’s talking - - and so if you don’t take this stuff as a
whole, it’s easier to put out of context what the defendant is saying and the import of
it.” The state also was concerned that if it only offered the individual messages
without the context, Lavender could argue that things had been left out and argue
what the absent messages might have held.
{¶18} Lavender began the hearing arguing generally that the comprehensive
set was objectionable because many of the messages were from several months
before the murder, and that they lacked relevance for that reason. He then argued
that, for some of the messages, the probative value was substantially outweighed by
the prejudicial effect they would have on the jury. Further, Lavender highlighted the
danger that, as these text messages related to illegal activity and other things that
cast him in a negative light, there was a danger that he would be convicted not on the
evidence, but because the jury simply reached the conclusion that he was a bad
person who did bad things.
{¶19} The state assured the trial court that the evidence, largely, was not
being offered as direct evidence of Lavender’s guilt. But rather the evidence was
being offered to demonstrate Lavender’s motive to take a murder-for-hire contract—
the fact that he was increasingly desperate for money. The state argued:
We’re showing it so that the jury has in their minds what’s
going on in the defendant’s life, what he’s talking about that’s going on
in his life that’s a motivation for him to do what he’s got to do.
And you can kind of see with all of them together how he
moves from, you know, he needs money so bad he’s going to rob
people. He needs money so bad he’s going to rob people. [sic] That’s
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not panning out for him. He goes to his dad. His dad’s not going to
give him money.
He finally gets to the point where he’s going to take
somebody’s life. And that goes to prior calculation and design. He
starts thinking about it.
You can see in these texts where he’s talking about that and
he’s talking about the people that are trying to talk him out of it. He’s
not worried about it. He’s got grown men afraid of him. He’s done it
before, he’ll do it again.
So all of this is important, extremely important, for the State in
being able to properly put into perspective the defendant’s intent and
motive and some of the other things that are set forth in 404(B).
It certainly lays the groundwork for the jury to understand the
situation the defendant found himself in and what his motivation was
for doing this.
{¶20} In response, Lavender began by arguing that much of what was being
presented violated Evid.R. 403.
There is no question that much of this what they talked about
is far more prejudicial than it is probative. A lot of it dates back four or
five months prior to. A lot of it is talking about things that is [sic]
inconsistent with their theory. And it’s far more prejudicial than it is
probative. It’s talking about different acts, shooting into cars, and so
forth. Again, that’s extremely prejudicial; far more prejudicial than it
is to show that he had a gun and he uses a gun.
That’s their reason for some of this coming in. So, Judge,
again, the rule is what it is; although relevant, when it’s substantially
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outweighed - - and that’s what we’re dealing with here; a cumulative
exhibit that is far more prejudicial than it is probative.
{¶21} The problem with excising portions of the comprehensive exhibit
became clear as the hearing continued. After discussing a series of messages in
which Lavender claimed that people were trying to kill him (some before the
shooting, some after), the parties and the court turned to a text message in which
Lavender had claimed to have shot into a car with people in it. The trial court
expressed concern with that message, as it did not fit neatly into the state’s theory of
showing Lavender’s increasing desperation for money. The state responded that it
would not strongly object if the court did not admit that text. At that point, counsel
for Lavender interjected:
Well, Judge, what I’m concerned about is - - and this is why I
think the whole exhibit is a problem. If we pull out the shooting in the
car, which I brought to the Court’s attention, that may be the thing
that he did why [sic] people want to kill him.
And that’s why the text messaging and it’s trying to speculate
on what they’re talking about is a problem, because that’s exactly what
you begin to do. And, again, I believe from looking at it and reading it
that that could very well be it.
This conversation was resumed when that particular text message came up during
the court’s review of the individual text messages in the 15 series. When it came up
during the review, the state suggested it was going to withdraw it based on the
previous discussion. At that point, counsel for Lavender interjected, saying
Well, Judge, at this point, if the Court - - because at this point I don’t
think the Court has decided to exclude anything, if the Court is going
to allow all of the rest of it in we just ask that this be included too
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because, again, it’s our belief that this may be what he’s talking about
people may want to kill him for [sic].
{¶22} Although never directly stated, it appears that the trial court
determined that the safer approach was to allow the comprehensive exhibit in and
allow the jury to use it to determine the context of the messages from the 15 series, if
needed. As the court said, “That’s to be argued in front of the jury where they decide
the quality of it.” The court advised counsel to review the comprehensive exhibit that
evening so that any problematic messages could be addressed and, if need be,
redacted.
{¶23} Having decided the general issue of the comprehensive exhibit, the
trial court then went on to individually consider the messages that would be
published to the jury during trial in the 15 series. After discussing the texts generally,
the state gave an overview of the 15 series, which were the texts to which the state
would be directing the jury’s attention during the trial. The state summarized that
the texts, beginning in April, show that Lavender needed money. Initially, Lavender
is complaining about not having money, asking people for money, and asking if
people know of anyone he can rob. The state then said that “at some point it
switches. In about June it switches from trying to rob people to becoming a hitman.”
{¶24} One message at a time, the trial court heard argument from counsel
on each message from 15a through 15qq. Many of the messages were admitted for
the limited purpose of showing motive or intent. Some of the messages, closer in
time to the shooting and purporting to speak directly about the shooting, were
allowed for all purposes. But there were also several messages that the court decided
fell outside the Evid.R. 404(B) exception. The one message regarding shooting the
car would have been excluded, had Lavender not withdrawn his objection to it.
Another text message that just made a reference to guns without any reference to
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money or being in need was excluded. Another message about having adults who
were afraid of him was excluded.
{¶25} The first question for this court to consider is the admission of the
comprehensive set. In his argument to this court, Lavender has argued generally
that the admission of the comprehensive set was error because hundreds of texts
were irrelevant, and many were prejudicial. But Lavender has not pointed to any
text messages in the comprehensive set that were problematic other than messages
that were also in the 15 series. Considering the comprehensive exhibit as a whole,
Lavender has failed to argue how its admission prejudiced him—distinct from the
prejudice he claims to have suffered from the messages in the 15 series. Without a
showing of prejudice, we will not conclude that claimed error in the admission of
evidence requires reversal. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, 848 N.E.2d 810, ¶ 74; see also City of Toledo v. Gorney, 6th Dist. Lucas No. L-
94-152, 1995 WL 136495, *1 (Mar. 31, 1995) (no reversal when part of testimony was
relevant and part was irrelevant but not prejudicial).
{¶26} Other than what Lavender argues in the 15 series, and what our
independent review of the exhibit has confirmed, there was nothing overtly
prejudicial in the text messages in the exhibit. There were several messages that
were not relevant, as one would expect by taking the entirety of the text message
history from a teenager for a period of six months. But the trial court considered this
issue and discussed the matter with the parties. The state’s concern with not giving
the jury the comprehensive exhibit was that it would be accused of cherry-picking
certain texts, taking them out of context, and ignoring other information. Without
the context of the whole exhibit it would be a difficult assertion to rebut. Even
Lavender’s counsel became concerned when the trial court began to suggest that
certain messages be excised, as it would not allow Lavender to argue from that same
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context. Given this situation, and the manner in which the exhibits were presented,
we cannot say that the trial court did not have a reasonable basis for allowing the
exhibit in, nor can we say that the trial court was clearly wrong. Coupling this fact
with the previous conclusion that the extraneous texts were at worst simply
irrelevant, we conclude that the trial court did not abuse its discretion when it
allowed the admission of the comprehensive exhibit.
{¶27} We now address the specific concerns regarding the messages cited by
Lavender in his brief. The Ohio Supreme Court has directed courts to conduct a
three-step test to consider whether other-acts evidence is admissible. State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19. “The first
step is to consider whether the other acts evidence is relevant to making any fact that
is of consequence to the determination of the action more or less probable than it
would be without the evidence.” Id. at ¶ 20. The second step is to “consider whether
evidence of the other crimes, wrongs, or acts is presented to prove the character of
the accused in order to show activity in conformity therewith or whether [it] is
presented for a legitimate purpose, such as those stated in Evid.R. 404(B).” Id. “The
third step is to consider whether the probative value of the other acts evidence is
substantially outweighed by the danger of unfair prejudice.” Id.
{¶28} We begin first with the relevance of the 15 series messages. Evid.R.
401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” At issue in this
case was Lavender’s motive to kill Lipscomb, which the state theorized was an
increasingly desperate need for money. As the trial court summarized its
understanding:
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I believe their argument is they’re not trying to argue to say
he’s acting in propensity or character - - has that propensity that’s
what he’s doing. They said they’re specifically offering it for other
purpose, including motive or intent, to go along the lines of prior
calculation or design and it wasn’t an accident.
That’s under 404(B) and that’s specifically one of the - - that’s
expressly stated as an exception. So I believe their argument is to say
there’s a man that’s willing to - - who’s desperate and looking to make
money any way he can make money and he’s trying to find a way - -
except for getting a job. And the way he’s willing to do things is he’s
willing to either rob, do whatever else, and it’s escalating to the point
where he’s willing to kill somebody.
Motive is generally relevant in all criminal cases since it is assumed that human
behavior is prompted by a desire to achieve specific results. State v. Curry, 43 Ohio
St.2d 66, 70-71, 330 N.E.2d 720 (1975). In order to show that progression, we
cannot say that text messages were irrelevant to establishing motive.
{¶29} The next argument that Lavender makes is that the text messages
were evidence of his character, and that the state was trying to demonstrate that his
character was such that he was likely to have killed someone for money. Evid.R.
404(A) states that “evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular
occasion.” “A hallmark of the American criminal justice system is the principle that
proof that the accused committed a crime other than the one for which he is on trial
is not admissible when its sole purpose is to show the accused’s propensity or
inclination to commit crime.” Id. at 68.
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{¶30} Proving an individual’s motivation is seldom a direct process. And
while it is not an element of either of the crimes for which Lavender was charged, it
was crucial to the state’s case. As the Ohio Supreme Court noted, in a murder case
where the identity of the killer is shown only by circumstantial evidence, motive
becomes an important issue. State v. Franklin, 62 Ohio St.3d 118, 128, 580 N.E.2d 1(1991), citing State v. Lancaster, 167 Ohio St. 391, 149 N.E.2d 157 (1958).
{¶31} Often times, this circumstantial evidence of a need for money comes
from sources that could otherwise paint a defendant unfavorably. For example, the
Ohio Supreme Court has held that a defendant’s drug addiction is admissible to
prove the defendant’s need for money, providing a motive to rob and kill. State v.
Henness, 79 Ohio St.3d 53, 61, 679 N.E.2d 686 (1997). The Second Appellate District
held that evidence of a civil judgment against the defendant physician was
admissible in a prosecution for trafficking in drugs to prove the motive of a need for
money. State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶
70 (2d Dist.). And this court has held that evidence of a defendant’s gambling habits
was admissible to show the defendant’s need for money in a case involving theft in
office, bribery, and attempted bribery. State v. Ridley, 1st Dist. Hamilton No. C-
100301, 2011-Ohio-2477, ¶ 65.
{¶32} We have reviewed the 15 series of exhibits and have determined that
they generally demonstrate the pattern of how desperate Lavender was to make
money, and how that need grew over time. In early April of 2014, Lavender texted an
individual asking if he knew of someone he could rob. Later that month, he texted
his sister asking her if she had any money. In another message, he tells someone
that he has no other support and that he’s been on his own since he was 11. He
relayed that he had been providing for his own needs without being able to rely on
his parents. In a text to his father, Lavender berated him for never supporting him,
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saying that he was tired of holding things in, having to sell heroin and marijuana to
get money to support himself, and that his father “ain gtta worry bou me [sic].” May
shows that his condition had not improved. On May 9, he asked someone if they
knew about someone he could rob. On the 14th, he texted three different individuals
asking for money.
{¶33} In June, Lavender appeared to have had something lined up. On the
15th, he texted someone called Ayana, telling her that he was going to do “sum shit
[sic].” When she asked what he had planned, he replied “This dude [sic].” When
Ayana presses for details, he says he’s “[Fixing to] get [somebody] together [sic],” but
then tells her that he probably wasn’t going to do it that night, but was just preparing
for it.
{¶34} The following day, Lavender texted her complaining about life on the
streets. Ayana tried to encourage him, but he said that he wanted to give up and that
so many people wanted him dead. He said he was afraid that he was not going to
amount to anything and that, while he was trying “[not] to feed into it,” he was
starting to believe it. After more attempts to encourage him, Lavender replied that
his own father had abandoned him and he had taken a life before and had tried to kill
others. He also related a story about how people he had trusted had “set me up n left
me fa dead [sic].” When Ayana told him to take a break from all that, he said that “I
[be] trying it’s hard I [don’t] have a mama to call [when] I’m broke I [gotta] do
[what] I [gotta] do to put money [in] my pocket [sic].” Ayana tried to tell him that
maybe he should try doing something different, but Lavender responded that he had
tried “hella times.” Ayana suggested that maybe Lavender could apply for a job, but
Lavender shoots that idea down “Bay [for real] I’m ok [sic].” After telling Ayana he
just doesn’t care about life anymore, he concluded by telling her “I’m ok [at least] I
[got] my gun :-) [sic].”
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{¶35} That same day, Lavender was texting with another number trying to
find someone to rob. The person he was texting had a person in mind, but Lavender
wanted to make sure that the target had some money because he didn’t “wanna rob
him [if] he broke [sic].” The next day, he texted Ayana that he had just found out he
had a child, who was two years old. On the 19th and 20th, there was a series of
messages between Lavender and another person in which Lavender was trying to get
money to “flip.”
{¶36} The text messages took a turn on June 22. Lavender texted Ayana,
telling her “I finna catch a body.”1 Testimony by Gehring established that this meant
that he was about to kill someone. Ayana desperately tried to talk Lavender out of it,
saying that he must not care about his son or nephew, and that he needed to think
about what he’s about to do. Lavender simply responded that he refused.
{¶37} The next message in the 15 series was a series of texts from Lavender
to someone named Kiara My Queen on July 20—less than two weeks before the
murder. He told her that his life had been hard and that he had been providing for
himself since he was 12 years old. He recalled an incident when he had been grazed
by a bullet and said that “when I was 14 I took two [people’s lives]” and that he had
shot “hella [motherfuckers] * * * [and] robbed hella [people].” He said he regretted
it all. He told her that he remembered going without food and staying outside for
days, and that he sometimes didn’t want to live anymore and that there was no one
to support him. He told the story about how he got kidnapped at age 14 because he
had robbed “a dope boy,” but that he was let go because his captors feared his older
brother. Because he had no one he could count on, he said he had to “do what[ever]
1 The trial court allowed the jury to consider this portion of the message for any purpose, but
limited the rest of the message to consideration for only the purpose of motive. The trial court
instructed the jury accordingly.
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it takes to keep money [in] my pocket[, ] shit to wear[, ] and food [in] my stomach
[sic].”2
{¶38} Later that day, he told Kiara that he had not eaten since the day
before. She told him to get something to eat and go home, but he told her he did not
have a home. Then he told her “in a couple weeks or even sooner [than that] I [am
going to be playing] with a check [and you’re] go[nna] have everything baby * * *.”
Gehring testified that “getting a check” meant coming into a sum of money.
Lavender told her that “we can get a car I’m really [going to] spoil [you] * * *.”
{¶39} On July 21, Lavender sent a text message in which he told Kiara about
the time that two girls tricked him into getting into a car by asking for marijuana.
Lavender said that some people then tried to pull him into the car, so he pulled out
his gun and fired nine times. He said that, while this had happened a month ago,
they were now calling him to find out where he was.3
{¶40} The day before the shooting, Lavender sent a message to Kiara saying
that he hoped to die and that his life was over. He also told her his phone was about
to be turned off for not paying the bill. When Kiara told him to pay the bill, Lavender
responded that he could not. He told her that every time he turned around, someone
was asking him for money. He said that he had given his mother $230, had given his
sister $60, and given the mother of his child $100. He later texted to another person
that everything in his life was going wrong.
{¶41} On the morning of the murder, Lavender received a message that his
text messaging had been suspended for nonpayment. The day after the murder,
Lavender received a message from Kiara saying “that’s why we need a car.” He
2 The trial court allowed the jury to consider this message for any purpose, not limiting it to
determination of motive. The trial court instructed the jury accordingly.
3 Lavender’s counsel withdrew his objection to this message in a sidebar discussion because, as
the trial court summarized the sidebar discussion later, it “became part of the trial strategy.”
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responded that he was going to save up for one, and that he only needed $2500 for a
black Cadillac.4
{¶42} A week after the murder, a person named Tauda texted and offered to
give Lavender some money on the first of the follwing month. And the texter then
asked why Lavender was jeopardizing his family and risking spending his life in jail
over “bs.” She said that his big brother was already gone and she did not want him to
go too. Lavender responded that he had a son to take care of and that he needed
some “shit” and he needed “everything” and that he would not settle for less. Tauda
responded that he will make things worse if he does something that he will regret
later, and that he risked getting locked up.
{¶43} On August 14, there was another exchange between Lavender and
another number. Lavender told the person that his time was running out. He said
that people wanted him dead and that they were trying to find him through social
media. He said that karma was a “mfer” and that he had this coming because he
chose this life and that there was nothing he can do but “fight back and let it
happen.” After a few more exchanges, Lavender said that he was going to die soon
and that he didn’t want anyone crying for him. He said he was trying his best to keep
calm. He concluded by saying that, every night, he “regret it i wish it never
happened. [sic]”5
{¶44} Another series of messages from that day between Lavender and
someone named Duke were shown to the jury. In that exchange, Lavender wished
the man good luck in his boxing career and said that he wasn’t going to be around
much longer, because people wanted him dead. He said that a friend told him that
4 The trial court allowed the jury to consider this message for any purpose, not limiting it to
determination of motive. The trial court instructed the jury accordingly.
5 The state sought, and the trial court allowed, the jury to consider the messages in this paragraph
for the additional purposes of lack of mistake and “how the crime was committed with respect to
intent.” The trial court instructed the jury accordingly.
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people were looking for him through Facebook, but the friend didn’t know them and
couldn’t tell who they were because “they blocked him or they deleted [their]
[Facebook accounts].” Duke offered to stand with Lavender, even if it meant
violence. Lavender told him that he was no longer willing to hide or run. Lavender
concluded, “Thats wa Im sayin Im goin out like scarface Word!!! ???? [sic]”
{¶45} The final series of messages, between Lavender and someone named
Zyon, were being sent at about the same time as the messages between Lavender and
Duke. Lavender began by also telling Zyon that people wanted him dead. He then
told Zyon that someone had told him people were trying to find out where he was
and trying to find out what “Shooter’s” real name was. Zyon promised that, if anyone
came after Lavender, they would all “get they head token off [sic].”6
{¶46} Having reviewed these messages, we cannot say that the trial court
abused its discretion in allowing the admission of the text messages to show that
Lavender was becoming increasingly desperate for money. While alternate
arguments can be made as to why a teen would text in the manner that Lavender did,
the state’s theory of what the text messages represent is not wholly unsupported by
the exhibits. The trial court considered this issue at length. It first considered the
issue generally in a pretrial motion in limine relating to the texts. It then conducted
a hearing on the issue the day before Detective Gehring was to testify about the
exhibits. The trial court considered each of the messages in the 15 series and
considered their progression. The trial court excluded some messages that had
nothing to do with Lavender’s need for money or feeling of despair. The trial court
concluded that the state’s theory could be supported by the messages presented, and
6 The trial court allowed the jury to consider the messages in this paragraph for any purpose, not
limiting them to a determination of motive or other Evid.R. 404(B) reasons. The trial court
instructed the jury accordingly.
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that it would be up to the jury to determine whether such an explanation was
credible. And as a final gate-keeping measure, the trial court considered the exhibits
a third time as each one was addressed by Gehring and admitted into evidence,
sometimes holding sidebar conferences to discuss some of the exhibits.
{¶47} Having determined that the trial court did not abuse its discretion
when it determined that the text messages were properly admitted for the purposes
set forth in Evid.R. 404(B), we must now determine whether the trial court abused
its discretion when it determined that the probative value of the exhibits was not
substantially outweighed by the danger of unfair prejudice, of confusion of the issues,
or of misleading the jury in violation of Evid.R. 403(A).
{¶48} When the texts were first discussed at trial, the trial court told the
jury:
The evidence that is now being introduced is received into the record
for a limited purpose to show motive and intent. When you consider
this evidence in your deliberations, you are not to use it for any other
purpose, including to prove the character of an accused in order to
show that the accused acted in conformity with that character.
{¶49} An instruction regarding the proper use of the text message evidence
was given 20 times at various points during the course of the presentation of the
messages to the jury.
{¶50} We conclude that the trial court, after having considered the problems
presented with the content of the text messages, fashioned a procedure to minimize
the danger that the jury would consider the evidence for improper purposes such
that the decision that the admission of the messages did not violate Evid.R. 403(A)
was not an abuse of discretion.
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Testimony about Hitmen
{¶51} In this argument, Lavender claims that the trial court erred when it
allowed Detective Gehring to testify as an expert witness on “how contract killings
occur.” For the reasons set forth more fully in our analysis of Lavender’s third
assignment of error relating to “expert” testimony of police officers, we conclude that
this testimony was properly admitted lay option testimony pursuant to Evid.R. 701.
See, e.g., State v. Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57
(detective’s testimony as to gang activity was permissible under Evid.R. 701 based on
detective’s personal knowledge and experience in the field).
{¶52} We overrule Lavender’s first assignment of error.
Sufficiency and Weight of Evidence
{¶53} In his second assignment of error, Lavender claims that his conviction
for aggravated murder was based upon insufficient evidence and was contrary to the
manifest weight of the evidence. A challenge to the sufficiency of the evidence asks
whether, viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found all the elements of the crime proven beyond a
reasonable doubt. State v. Millikin, 1st Dist. Hamilton Nos. C-030825 and C-
030826, 2004-Ohio-4507, ¶ 15. Review of a weight-of-the-evidence challenge,
however, requires examining the entire record, weighing all the evidence and
reasonable inferences, and considering the credibility of the witnesses to determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way,
resulting in a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997).
{¶54} The state presented testimony from Coulter that he saw Lavender
fleeing from the scene immediately after the shooting. While Lavender was running
away, Coulter saw him wrap what appeared to be a small handgun in his shirt.
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Coulter testified that he knew Lavender from the neighborhood. A composite sketch
created from Coulter’s account bore a striking resemblance to Lavender, and Coulter
was able to pick Lavender’s picture out from a photo array. Additionally, Johnson
testified that he overheard a conversation in which Lavender claimed he was going to
kill Lipscomb for money as part of a contract killing. Johnson also told police that he
had seen Lavender with a small revolver. The fact that the police suspected that the
weapon had been a small revolver was not public information, and Johnson had not
been told this prior to his interview with detectives. Additionally, Lavender’s history
of text messages demonstrated that he was becoming both increasingly desperate for
money and increasingly despondent in general. And then he told someone that he
was about to pick up a body, and that soon his money troubles would be over.
Within days of the shooting, Lavender’s text conversations turned to thinking about
purchasing a car.
{¶55} Admittedly, this was not a “slam-dunk” conviction. But, on this
record, there was sufficient evidence to support the jury’s verdict, and we cannot say
that the jury lost its way when it convicted Lavender of aggravated murder or that his
conviction was a manifest miscarriage of justice. We overrule Lavender’s second
assignment of error.
Ineffective Assistance of Counsel
{¶56} In his third assignment of error, Lavender claims that his trial counsel
was ineffective for several different reasons and that, as a result, he was denied a fair
trial. We disagree.
{¶57} To prevail on an ineffective-assistance-of-counsel claim, Lavender
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness, and he was prejudiced as a result. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
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St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance will only be
deemed deficient if it fell below an objective standard of reasonableness. Strickland
at 688; Bradley at 142. With regard to deficient performance, “a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689. In other words, “the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. A reviewing court
must indulge a presumption that counsel’s behavior fell within the acceptable range
of reasonable professional assistance. Strickland at 689; Bradley at 142. With
regard to the second required finding, a defendant is only prejudiced by counsel’s
performance if there is a reasonable probability that the outcome of the proceedings
would have been different but for the complained-of conduct. Strickland at 694;
Bradley at 142.
{¶58} Lavender claims that counsel was ineffective in 16 separate areas. We
will address each in turn.
Voir Dire
{¶59} Lavender first claims that trial counsel was ineffective for failing to
pursue his challenge to the state’s preemptory strike of a juror pursuant to Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He claims that trial
counsel erred when he withdrew the challenge “based on the fact that it was the first
preemptory challenge.” As this court has noted, “the existence of a pattern of
discriminatory strikes is not a prerequisite to a prima facie case or to a finding of
actual discrimination by the trial court.” State v. Walker, 139 Ohio App.3d 52, 56,
742 N.E.2d 1173 (1st Dist.2000); see State v. White, 85 Ohio St.3d 433, 436, 709
N.E.2d 140 (1999).
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{¶60} However, this case is distinguishable from Walker. In Walker, the
only argument that the state raised relating to its decision to strike the African-
American juror was that since he was the first African-American juror struck and
since the state had struck a white juror before that, there had been no pattern
established. Walker at 57. In this case, however, the state had valid race-neutral
reasons for using one of its preemptory challenges. The prospective juror had
indicated that she would have a difficult time following the law and weighing
circumstantial evidence. The prospective juror also said that she would not be a
good juror.
{¶61} In a case from the Second Appellate District, the court faced a claim
that trial counsel had been ineffective for failing to timely issue Batson challenges to
various witnesses. State v. Robertson, 90 Ohio App.3d 715, 720, 630 N.E.2d 422 (2d
Dist.1993). In that case, trial counsel had waited until after the jury had been sworn
before raising the issue. The court first determined that a prima facie case had been
met as the jurors struck by the state were African-American. The court then went on
to state that “[t]he only remaining question is whether a timely Batson challenge
would have succeeded, i.e., was the Batson challenge meritorious.”
{¶62} Engaging in the same analysis, we conclude that the challenge, while
it would have been facially appropriate, would not have succeeded. The record
demonstrates that the state had race-neutral reasons for striking the juror. Counsel,
while incorrect in his understanding of how a Batson challenge is triggered, was not
ineffective for failing to pursue it.
Opening and Closing
{¶63} Lavender next cites six instances during the opening remarks and
closing arguments of the parties in which counsel was ineffective. We will address
each issue in turn.
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{¶64} First, Lavender claims that counsel was ineffective for failing to object
to the state’s comment in opening that the case did not have to be perfect, and that
70 percent was okay. He claims that this statement mischaracterizes the beyond-a-
reasonable-doubt standard of proof.
{¶65} During opening statements, the state began by explaining to the jury
how a trial is like putting a puzzle together. Since different witnesses have different
information relevant to the case, each witness gives different pieces to the puzzle.
The state then went on to say that:
And, more importantly, if you keep that or you use that jigsaw puzzle
reference in the back of your mind or in the back of your pocket, you’re
going to see with respect to the burden of proof that’s imposed upon
the State - - we talked yesterday about how the State doesn’t have to be
perfect, that the jigsaw puzzle - - you all know this from your
experience. As you start putting the puzzle together, if you don’t know
what it is, sometimes you can have 70 percent of the puzzle done and
you know it’s a picture of the Statue of Liberty. You don’t have the
parts here of the sky, but you’ve got that. Sometimes you need more,
sometimes you need less to determine what it is. And so as you listen
to the evidence, it’s important to keep that as a reference.
{¶66} In the context of this opening statement, it is not necessarily the case
that the state is talking about the burden of proof. The analogy seems to be more
about how you can tell what the picture is even when some of the pieces are missing.
The rest of the opening statement talks about how there is no fingerprint evidence,
there is no DNA evidence, there are no shell casings, etc. But, even without that
evidence, the state would present enough to support a conviction.
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{¶67} But even if the analogy were about proof beyond a reasonable doubt,
the state’s comments were not prejudicial. We have previously addressed this exact
issue in State v. Jones, 1st Dist. Hamilton No. C-160826, 2018-Ohio-1130, ¶ 14. In
Jones, this court held:
Generally, “attempts to ‘clarify’ the term by example, analogy,
metaphor, or simile are ill-advised.” State v. Turic, 2d Dist. Greene
No. 2010 CA 35, 2011-Ohio-3869, ¶ 13. But as the Ohio Supreme
Court stated when confronted with a different analogy, “While the
prosecutor’s comments were perhaps inappropriate, we do not find
that the comments denigrated the reasonable doubt standard.
Moreover, the trial court’s ‘reasonable-doubt instructions negated any
misconception by the jury.’ ” State v. Hanna, 95 Ohio St.3d 285,
2002-Ohio-2221, 767 N.E.2d 678, ¶ 78, quoting State v. Lundgren, 73
Ohio St.3d 474, 484, 653 N.E.2d 304 (1995). Even the Turic court,
which cautioned against the use of analogies to further explain
reasonable doubt, found that the defendant had shown no prejudice
because “the trial court instructed the jury that the court would set
forth the law to be applied to the case, and it correctly defined
reasonable doubt shortly after voir dire and in the concluding jury
instructions.” Turic at ¶ 14.
In this case, the jury was given the proper definition of
reasonable doubt in the jury instructions. In light of this proper
instruction, the state’s use of analogy—while ill-advised—did not
denigrate the reasonable-doubt standard. And the comments did not
rise to the level where it is clear that Jones would not have been
convicted in their absence.
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Jones at ¶ 14-15. The jury was properly instructed on the burden of proof in this
case. Therefore, Lavender was not prejudiced by the statements made by the
prosecutor in his opening statement. Counsel was not ineffective for failing to object.
{¶68} Second, Lavender claims that counsel was ineffective for failing to
object to statements made by the prosecutor during his opening statement that
Lavender’s brother was a “hit man” and that killing people was the “family business.”
Additionally, the prosecutor made the comment that Lavender had the nickname
“Shooter” because he shoots people. Lavender argues that the statements were
“grossly prejudicial” and irrelevant to the case, and the failure to object cannot be
excused as trial strategy.
{¶69} Toward the end of his opening statement, the prosecutor discussed
the text messages that were going to be admitted and what they would demonstrate.
MR. PREM: And you got to remember [sic], when you see
these texts, when you see this evidence, this is a guy that really doesn’t
want to talk on the phone to somebody about why his name is Shooter.
He’s less guarded with his family.
And he says, “It’s a lifestyle I’ve chosen.” His sister says at
some point, “I don’t want to lose you like we did our brother.”
And when you see that, at first glance you might think, wow,
maybe the defendant’s brother was killed. The defendant’s brother
wasn’t killed. The evidence is going to tell you that when the sister and
the defendant were talking about that, they’re talking about his brother
who was a hitman, his brother who used a small-caliber revolver - -
MR. HARRIS: Judge, I’m going to object.
THE COURT: Basis?
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MR. HARRIS: His brother was a hitman and the evidence. It’s
speculation, Your Honor.
THE COURT: Well, I’m assuming you’re getting to the point
where you’re going to establish that and connect it up.
Again, I’ll remind you, ladies and gentlemen of the jury,
opening statements are not evidence.
Please continue.
MR. PREM: The evidence is going to show it’s a family
business. This is what he does. This is how he was trained. This is
what he thinks. As sad as it sounds, this is how he lived his life back in
August of 2014 when he chose to take Mr. Lipscomb’s life for money.
{¶70} The reference to Lavender’s older brother as a hitman was important
to the state to explain the text message from his sister in which she said that she did
not want Lavender to wind up like he did. The state had evidence that Lavender’s
brother had been convicted of aggravated murder in a murder-for-hire scheme. This
context gave particular meaning to the statement made by his sister that would have
been lost on the jury otherwise. Additionally, references to Lavender as “Shooter”
and the explanation therefore were important because it tied Lavender to the person
that Johnson knew as Shooter, who was the one he overheard talking about his plan
to kill Lipscomb for money. The offhand remark about murder being the family
business, while hyperbolic and improper, was an isolated one and we cannot say that
Lavender would not have been convicted without it. It was therefore not ineffective
for counsel to fail to object.
{¶71} Third, Lavender claims that counsel was ineffective for failing to
object to the state’s closing argument in which it reviewed the text messages from the
months prior to Lipscomb’s death about robberies, the defendant’s difficult life, and
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selling drugs because, as Lavender argues, the state wanted the jury to “understand
who the defendant is.”
{¶72} We have discussed the text messages and the propriety of their usage
at some length in the previous assignment of error, and the rationale for which the
trial court allowed them to be used. Therefore, we address solely the comment that
the prosecutor made to the jury that he wanted the jury to “understand who the
defendant is.” On the surface, it sounds like the state is attempting to use evidence of
Lavender’s character to prove that he acted in conformity therewith on August 4,
2014—in violation of Evid.R. 404(A).
{¶73} But examining the closing argument overall, we found no improper
comment when considering the context. During closing argument, the prosecutor
quoted a series of texts regarding his need for money and his desire not to rob
someone who doesn’t have any. The prosecutor then went on to say:
Those two statements came in under this Evidence Rule 404B when
the judge said they’re admitted for a limited purpose. And I would
agree with Mr. Harris; you cannot consider the fact that the
defendant’s talking about robbing somebody, the defendant’s talking
about his life is so miserable he’s gonna sell drugs, you can’t allow that
to so infuriate you that you let your bias, sympathy or emotions swing
toward me and you say if he does that he’s got whatever coming to
him. It’s only for a limited purpose for you to understand who the
defendant is.
(Emphasis added.) In context, the prosecutor was attempting to explain the exact
opposite of what Lavender is claiming. The prosecutor properly explained that the
jury could not consider the evidence for the purpose of deciding that he had acted in
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conformity with the mentioned bad behavior. Reading the statement in context, that
is clear. Counsel was not ineffective for failing to object on that basis.
{¶74} Fourth, Lavender claims that counsel was ineffective for failing to
object to the comment made by the prosecutor during closing argument that “the
information the defense relied on in presenting their case was provided to them
through the police officers and not through the investigative work of the defense
attorneys or investigator,” as the state was trying to bolster its credibility.
{¶75} During closing argument, the state was discussing the testimony of
Ramon Davis. During Davis’s testimony, the state had elicited a response from Davis
in which he admitted that he did not see anyone at the scene of the shooting when he
went into the Port-O-Potty. The prosecutor then went on to say:
And the reason that’s important is because when Mr. Harris
was trying to tell you how he cracked this case by using Mr. Davis, Mr.
Davis says - - wherever State’s Exhibit 20A is. You’re going to have it
in the back and you listen to it. Don’t take my word for it. He says - -
he talks about: I was coming out of the Port-O-Potty and another
woman here, she saw the guy running.
I asked him about that. I said: But then you made this
statement - - I’m talking to Mr. Davis. It was another witness here that
seen [sic] the man run.
***
And his answer is Yeah.
***
So the question is how do you think they got the 911 call [that
Davis made]? How do you think they got the CAD report [that named
Davis]? How do you think they got Mr. Davis’s name?
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Through this great investigator Jonathan Campbell? Or
through these very same police officers that on a daily basis - - he
doesn’t get a bonus for getting the wrong guy convicted of a crime.
And, in fact, you got to see him testify. You got to see Detective
Gehring testify. You got to see Howard Grant testify.
And I know Mr. Harris made a big deal about: These are
professional witnesses, professional witnesses.
{¶76} One of the main prongs of the defense’s theory of the case was that
the state had conducted the investigation poorly. In particular, one of the major
themes was that detectives ignored the information Davis had to offer and that they
downplayed his significance. In this argument, the state was attempting to
demonstrate that the investigators had not concealed the information Davis had to
offer, nor had they completely ignored him. Lavender would not have had the
information about Davis unless law enforcement had provided it. While the state
may have been more spirited than would be preferable, both parties may be “colorful
or creative” during closing argument, provided comments are supported by the
evidence. State v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). The state
was permitted to address the allegation made in Lavender’s closing argument as to
the work of the detectives regarding Davis, and counsel was not ineffective for failing
to object to his argument.
{¶77} Fifth, Lavender claims that counsel was ineffective for failing to object
to comments made by the prosecutor that tended to denigrate defense counsel.
Lavender claims that the prosecutor told the jury that defense counsel was “trying to
manipulate witnesses into saying something untrue, taking a fact and twisting it, and
asking questions of the witness that were unfair.” He also claims that the state
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“accused defense counsel of purposefully misleading the jury by not asking
important, relevant questions of the witnesses.
{¶78} During closing argument, the state was continuing to address the
charges by Lavender’s trial counsel about the detectives being “professional
witnesses” and, in particular, being purposefully nonresponsive to his questions on
cross-examination. During his closing, defense counsel spent a great deal of time
discussing this issue, at one point saying
They’ve come to court specifically for this case. They testify without
notes, so they’ve either reviewed their notes and got prepared or they
went over something, but they can’t remember if the suspect gave
them his phone with the pass code unlocked. They can’t recall that.
Do you believe that? Or is that a professional witness testifying
professionally? I want you to think of how evasive these officers were
when being asked questions.
{¶79} In response to this particular attack on the state’s case, the prosecutor
responded:
That’s important because Mr. Harris brought up these police
officers. The one I remember is Grant, Howard Grant, who’s a
sergeant, a supervisor, been a homicide cop for a long time. Has been
in here before. Has been under the gun before. And he knows that a
defense attorney can take a fact and twist it. Can take something that’s
small and make it big.
And so there was an exchange between Mr. Harris and Sergeant
Grant. Where Harris said: Isn’t it true that most witnesses don’t want
to cooperate with the cops? Remember that? And Grant didn’t answer
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at first. I forget, he equivocated in some way: I can’t say that’s true all
the time.
And Mr. Harris: Isn’t it true that most witnesses don’t want to
cooperate with the cops. And he did it two or three times. He tried to
get the judge to get him to answer the question.
And then I interceded and said: Judge, he’s trying to answer the
question posed.
And then Mr. Harris changed the question slightly: Isn’t it true
that in that neighborhood, most people don’t want to talk to the cops.
And Sergeant Grant said: Well, yeah, that’s true.
***
So the question was not fair for what he was trying to do; and
that is he’s trying to - - and this isn’t a bad thing; he’s trying to put
doubt in the case, he’s trying to attack the case. That’s his job. That’s
what he’s supposed to do, but he’s not a magician and he’s stuck with
the evidence that the police are able to get.
{¶80} The state’s rebuttal closing was a direct response to defense counsel’s
assertion that the “professional witnesses” were being purposefully nonresponsive to
his questions on cross-examination. The argument was appropriate, and defense
counsel was not ineffective for failing to object to it.
{¶81} Finally, Lavender claims that counsel was ineffective for failing to
object to the state’s comments during closing argument that the prosecutor had told
the witnesses to “tell the truth whether it helps me or hurts me,” which represented
the state’s attempt to improperly bolster their credibility.
{¶82} Again, we find nothing improper for trial counsel to have objected to.
During defense counsel’s closing argument, counsel focused specifically on the two
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witnesses who tied Lavender to the crime. First, counsel attacked Domingo Johnson.
According to defense counsel, Johnson had every reason to lie on the stand to save
himself. He was facing numerous felony-drug charges and was hoping to have them
all dismissed. Similarly, counsel attacked the testimony of Dennis Coulter, the state’s
eyewitness. Because of his involvement in the case, Coulter and his family had been
moved into witness protection. As a result of being in witness protection, their
expenses were being paid by the government. Defense counsel implied that, as a
result of the state paying his expenses, Coulter felt compelled to testify in a way that
the state wanted him to.
{¶83} In response to this argument, the state said:
Remember what Dennis told you that I told him to do. I mean,
I sat down with Dennis. In his testimony he said we sat down, we
reviewed what I’ve said in the past.
I sat down with him and I said to him, like I said to Domingo:
You got one job here. It’s to tell the truth whether it helps me or helps
him.
***
And I said [to Johnson]: what do you got to do to get my help?
Tell the truth whether it helps me or helps him.
Defense counsel had implied that there was an implicit quid pro quo that existed
between the state and its two witnesses. The state was permitted, as it did, to negate
that implicit attack by going over in closing the terms of the deals. The government’s
payment of Coulter’s expenses while in witness protection was not conditioned on his
testifying in any particular way. And Johnson’s deal with the state relating to his
pending charges was also not contingent on him testifying a certain way. This was a
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proper argument for the state to make, and defense counsel was not ineffective for
failing to object.
Admission of Photographs
{¶84} Lavender next argues that counsel should have objected to the
admission of three photographs depicting him flashing stacks of money on Facebook
and a picture of him making a finger gun gesture to the camera. The state argued
that the pictures of cash were relevant because they were taken from Lavender’s
phone and, as Detective Gehring testified, murder-for-hire participants are usually
paid in cash. On appeal, Lavender argues that there was no legitimate trial strategy
for allowing the pictures in.
{¶85} One of trial counsel’s strategies was to explain away the texts and
social media evidence, as much as possible, by depicting it as the posturing of a
teenager engaged in a segment of urban culture that finds such images and talk
admirable. During the cross-examination of Coulter, for example, counsel for
Lavender questioned Coulter about the culture in some detail, even getting Coulter to
admit that he, too, had posed for such pictures at one time even though Coulter
thought of himself as a “positivity” rap artist. The photos fed into that narrative,
where they were not to be taken seriously, but rather to be seen as a poseur. In light
of this, it was not improper for trial counsel to fail to object to the admission of the
photographs.
Prosecutorial Misconduct – Leading Questions
{¶86} In addition to the above, Lavender makes several additional
arguments relating to counsel’s failure to object to portions of the proceedings that
he claims represent prosecutorial misconduct. In his first argument, Lavender
claims that counsel should have objected to the state’s use of leading questions on
direct examination.
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{¶87} We have examined the three instances cited by Lavender in their
context. All three came from the questioning of a detective on areas of procedure
about which trial counsel had presented evidence that the police work had been
deficient. But these questions in no way coached the witness to give an answer that
was untrue or that the witness would not have otherwise given. See State v. Lott, 51
Ohio St.3d 160, 555 N.E.2d 293 (1990). This was not a situation, like this court has
addressed previously, where the prosecutor had “essentially testified for the state’s
witnesses.” See State v. Lee, 1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 31.
Trial counsel’s failure to object to these isolated questions was not ineffective.
Prosecutorial Misconduct – Bolstering Witness Credibility
{¶88} Next, Lavender claims that counsel was ineffective for failing to object
to a series of questions presented to law enforcement witnesses designed to
demonstrate that they had followed proper procedure. Lavender now argues that the
state was improperly “bolstering” its case and improperly shoring up the credibility
of its witnesses. But Lavender cites no legal rule that this violates, and he has made
no reference to any legal authority that stands for the proposition that the state is not
permitted to do so. Trial counsel placed the quality of the police work at issue in this
case, and the state was permitted to respond to that by eliciting testimony about the
quality of the police work. Trial counsel understood that he had placed that at issue,
and therefore, did not object when this evidence was presented. And he was not
ineffective for failing to do so.
Prosecutorial Misconduct – Improper Expert Testimony
{¶89} Increasingly, this court is seeing cases in which criminal defendants
are seeking reversals of their convictions based on the argument that members of law
enforcement have offered testimony at trial as expert witnesses. The argument
generally goes that, since the officer offered testimony beyond the scope of a lay
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person, he is testifying as expert witness, but the state did not file a report pursuant
to Crim.R. 16(K). And since that rule says that “[f]ailure to disclose the written
report to opposing counsel shall preclude the expert’s testimony at trial,” the trial
court erred when the testimony was allowed. (Emphasis added.) Crim.R. 16(K).
{¶90} While Lavender’s argument is somewhat difficult to follow, he seems
to first argue that Police Officer Grant improperly testified as a “quasi expert
witness” on eyewitness identification. Grant was the officer who conducted the
photo array with Coulter. The state asked him what he thought when Coulter first
expressed that one individual looked like the suspect, and then said that another was
the person he saw. Lavender also claims that Grant improperly testified as an expert
witness on the issues relating to pretrial motions to suppress eyewitness
identifications and the rules relating to the disclosure of exculpatory evidence. He
also claims that Grant improperly testified as an expert witness on how homicide
investigations are properly undertaken. Lavender further claims that Detective
Gehring testified as an expert witness on the question of how discovery works in a
criminal prosecution, how people in a high-crime neighborhood behave and speak,
the use of burner phones and trap houses, the workings and identification of
firearms, the proper implementation of a photo array for identification, and the
usefulness of a composite sketch.
{¶91} Recently, this court has addressed the issue of police officers giving
expert testimony based on their experience in law enforcement. In the first case, this
court addressed the question of a police detective who testified as an “expert in
investigating child abuse and neglect.” State v. Hall, 1st Dist. Hamilton No. C-
170699, 2019-Ohio-2985, ¶ 9. In that case, the state qualified the detective as an
expert, the trial court recognized her as an expert, and the detective then testified to
such issues as how children victimized by sexual assault typically behave, the
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credibility of the complaining witnesses, and explanations for lack of physical
evidence. This court concluded that the detective’s opinions constituted expert
opinions and that they fell under the requirements of Crim.R. 16(K). Id. at ¶ 20. We
held that the testimony was not only improper, but that it was also crucial to the
state obtaining a conviction. Id. at ¶ 25. This fact coupled with what this court found
to be “pervasive prosecutorial misconduct during the closing arguments” resulted in
the reversal of the conviction. Id. at ¶ 39.
{¶92} A few weeks later, this court returned to the issue when addressing a
police officer who testified as an accident reconstructionist on the question of
whether a defendant intentionally drove into a pedestrian. State v. Benson, 1st Dist.
Hamilton No. C-180128, 2019-Ohio-3255. In that case, the parties conceded that the
officer had testified as an expert witness, and the state had failed to submit a report
pursuant to Crim.R. 16(K). Id. at ¶ 13. We held that the testimony violated the rule
and that it also was improper because it was an opinion on an ultimate issue. Id. at ¶
15. But this court went on to conclude that the error was harmless, because the other
evidence favoring the conviction was “much more extensive and powerful” than it
had been in Hall. Id. at ¶ 32.
{¶93} Most recently, this court has addressed the question of a police officer
who testified as an expert witness on fingerprint analysis. State v. Johnson, 1st Dist.
Hamilton No. C-170354, 2019-Ohio-3877. The witness testified that the fingerprint
of the defendant matched that of ones found on certain evidence. The state claimed
that the “evidence examination worksheet” that had been provided to the defendant
constituted the expert report. Id. at ¶ 20. The witness testified to her specialized
training, and the methodology she used when collecting and comparing the evidence.
Id. at ¶ 21-23. We found that the defendant had not shown that the state had
violated Crim.R. 16(K) because the “evidence examination worksheet” was not in the
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record, and the defendant could not establish that it failed to meet the Crim.R. 16(K)
requirements. Id. at ¶ 42.
{¶94} By its terms, Crim.R. 16(K) applies to “an expert witness for either
side.” In each of the above cases, there was no question that the witness was giving
expert testimony such that the testimony fell within the parameters of Evid.R. 702
and, ultimately, Crim.R. 16(K). But if a witness is not testifying as an expert, Crim.R.
16(K) does not apply. See, e.g., State v. Heller, 9th Dist. Lorain No. 18CA011304,
2019-Ohio-4722, ¶ 10 (Crim.R. 16(K) does not apply to a case where a doctor is
providing a lay opinion based on personal observation that an infant’s injuries were
not the result of an accident); see also State v. Heineman, 2016-Ohio-3058, 65
N.E.3d 287, ¶ 22 (8th Dist.). But within this recent line of jurisprudence, this court
has not been called upon to address the question of when the testimony of a police
officer becomes expert testimony because that factor was not in contention. The
answer for our purposes lies somewhere between the interplay of Evid.R. 701 and
702.
{¶95} In 2001, the Ohio Supreme Court discussed the interplay between
Evid.R. 701 and 702. State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d 737 (2001). In
that case, the court said:
It is consistent with this emerging view of Evid.R. 701 that courts have
permitted lay witnesses to express their opinions in areas in which it
would ordinarily be expected that an expert must be qualified under
Evid.R. 702. The situation presented in this case fits into this
classification. Although these cases are of a technical nature in that
they allow lay opinion testimony on a subject outside the realm of
common knowledge, they still fall within the ambit of the rule’s
requirement that a lay witness’s opinion be rationally based on
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firsthand observations and helpful in determining a fact in issue.
These cases are not based on specialized knowledge within the scope of
Evid.R. 702, but rather are based upon a layperson’s personal
knowledge and experience.
Id. at 296-297. The Twelfth Appellate District outlined the distinction between lay
and expert opinion as
[a]n “expert witness” is defined as one who is “qualified by
knowledge, skill, experience, training, or education to provide a
scientific, technical, or other specialized opinion about the evidence
or a fact issue. * * * ” Black’s Law Dictionary (8th Ed.2004) 1633. In
contrast, a “lay witness” is defined as one who does not testify as an
expert and is restricted to “giving an opinion or making an inference
that (1) is based on firsthand knowledge, and (2) is helpful in
clarifying the testimony or in determining facts.” Id.
State v. Fread, 12th Dist. Butler No. CA2013-03-045, 2013-Ohio-5206, ¶ 14. The
distinction between lay and expert-witness opinion testimony is that lay testimony
results from a process of reasoning familiar in everyday life, while expert testimony
results from a process of reasoning that only specialists in the field can master.
McKee at 297, fn. 2.
{¶96} As this court has noted, police officers may offer lay opinion
testimony under Evid.R. 701 if it is based on the officers’ perceptions through
experience. State v. Smith, 2017-Ohio-8558, 99 N.E.3d 1230, ¶ 44 (1st Dist.), citing
State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 16. As another
court noted, “[i]t is well-settled that a police officer may testify concerning matters
that are within his experience and observations that may aid the trier of fact in
understanding the other testimony pursuant to Evid.R. 701.” State v. Jones, 2015-
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Ohio-4116, 43 N.E.3d 833, ¶ 108 (2d Dist.), citing State v. Tatum, 10th Dist. Franklin
No. 10AP-626, 2011-Ohio-907, ¶ 17.
{¶97} A number of courts have determined that a police officer’s opinion
testimony may be admissible to explain a fact at issue even when it is based on
specialized knowledge. See Smith at ¶ 45 (officer testified that quantity of drugs
recovered represented an amount intended for distribution rather than for personal
use); State v. Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, ¶ 36
(officer’s testimony regarding cell phone image extraction admissible when it was
based on his training and experience as a “certified mobile examiner”); State v. Blair,
2016-Ohio-2872, 63 N.E.3d 798, ¶ 96 (4th Dist.) (detectives properly gave opinion
that an individual did not have the strength to beat the victim to death and did not
exhibit the kind of wounds that administering such a beating would have created);
Tatum at ¶ 17 (detective testified, based on his experience shooting, working at crime
scenes and recovering spent casings, that a large-caliber weapon was involved in
shooting); State v. Meddock, 2017-Ohio-4414, 93 N.E.3d 43, ¶ 21 (4th Dist.) (officer’s
testimony regarding the ingredients and equipment necessary to manufacture
methamphetamine); State v. Rardon, 2018-Ohio-1935, 112 N.E.3d 380, ¶ 58 (5th
Dist.) (testimony from officer regarding thousands of text messages from accused
drug dealer to explain terminology); State v. Johnson, 7th Dist. Jefferson No. 13JE5,
2014-Ohio-1226, ¶ 57 (detective’s testimony as to gang activity was permissible
under Evid.R. 701 based on detective’s personal knowledge and experience in the
field); State v. McClain, 6th Dist. Lucas No. L-10-1088, 2012-Ohio-5264, ¶ 13
(detective’s testimony that quantities of narcotics recovered during the execution of
the search warrant suggested that they were for sale as opposed to personal use was
admissible under Evid.R. 701 as lay person opinion testimony because his testimony
was based on his training and experience).
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{¶98} It is clear that Crim.R. 16(K) requires the admission of expert
testimony before a report is required. We have discussed the distinctions between
expert and lay opinion testimony. And we have also considered under what
conditions members of law enforcement may offer lay opinions based on their
experience and observations that may aid the trier of fact in understanding the other
testimony. Now we turn to the testimony about which Lavender complains.
{¶99} At the time of trial, Sergeant Howard Grant had been a police officer
for 17 years. He had been a supervisor in the Special Investigations Section
investigating homicides for 10 months. Prior to that, he had supervised a number of
other departments. His role was to supervise investigations, including management
of a crime scene, the proper charges to be filed, and preparation of a case for trial.
His main role in this case was related to the administration of the photo array to
Coulter.
{¶100} Lavender first claims that Grant gave improper expert opinion on the
validity of the photo array used in this case, and photo arrays in general. In rebuttal
after Lavender’s trial counsel’s cross-examination, the state asked Grant
Q: When Mr. Harris was asking you about this photo spread
and you said are you asking me what my opinion of the lineup is and
he didn’t ask you that. Have you looked at the photographs of these
individuals?
A: Yes
Q: Is there anything glaring of that sticks out to you as being
obviously noticeable or that points to any one picture that a person
should pick out?
A: No.
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This line of questioning does not call for an expert opinion, nor does it even rely on
Grant’s experience as a police officer. During cross-examination, trial counsel was
trying to get Grant to admit that the photograph of Lavender was much different
than the photographs of the other five subjects in the array. This was not expert
testimony.
{¶101} Lavender next claims that the state elicited expert testimony from
Grant regarding Coulter’s certainty regarding the identification of Lavender in the
array.
Q: Okay. Would you consider that - - you said the number 4
thing, said it looks like him, but you didn’t consider it necessarily an
ID. What did you think about Mr. Coulter’s statement about this
individual?
A: He believed that that person in Number 5 was the person
that he saw commit the homicide.
Q: Okay. Did you stop at that point?
A: I did not stop.
Q: What did you do?
A. My normal protocol is to ask is there anything else you want
to say about this. Once he gave me the additional information about
Number 5 we moved on from it. Took that photograph, put it in my
folder, turned it backward and I presented to him Number 6.
In this case, Grant administered the photo array one picture at a time. Coulter was
shown each photograph and asked if he recognized the person depicted. When Grant
reached Number 4, Coulter said that it looked a lot like the person he saw. When
Grant moved on to Number 5, Coulter said that the person in that photograph was
definitely the person he saw. Contrary to what Lavender has argued, this testimony
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was not offered as an expert opinion on how Coulter performed in the identification
process. Rather, it was a factual recounting of why Coulter would have seemingly
said that two different people looked like the shooter. Regardless, the testimony was
not expert testimony, nor again was it lay opinion testimony based on Grant’s
experience as a police officer.
{¶102} Lavender next complains that Grant gave expert opinion testimony on
motions to suppress witness identification testimony. Lavender claims that the state
then used that testimony later to suggest that a lineup is not suggestive if a court
admits it into evidence. During Grant’s testimony, the state asked
Q: And you know - - do you know as a police officer if a lineup
is suggestive, unfair, doesn’t comply with this Revised Code that he
was talking about, what does the defense through his attorney do at
that point.
A: They would file a motion to suppress that identification.
Q: And - -
MR. HARRIS: Objection, Your Honor.
THE COURT: Basis?
MR. HARRIS: We submit, Your Honor.
Q: What is that?
A: A motion to suppress would be a hearing that’s done in front
of the judge in the court where the defense attorney and defendant are
there with the prosecutor and they argue whether that photo lineup
was suggestive or inappropriate or unfair.
Q: And if it’s determined that the lineup was suggestive or
inappropriate or unfair what happens to the lineup?
A: It becomes inadmissible in that case.
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Later, during the state’s redirect examination, Grant was asked:
Q: When Mr. Harris was asking you on cross about suggestive
photographs and you said it’s a court issue, what did you mean by
that?
A: What I meant by that it’s for the Court to determine whether
the lineup will be used further in court. If the Court determined that
the lineup was not suggestive or suggestive, the Court will make the
determination, not me as a detective.
Q: So is there a process, to your knowledge, as a matter of law
that allows a defendant who thinks a lineup is suggestive to challenge
it in court?
A: Yes, a suppression hearing.
This testimony represents Grant testifying to an area that would not be something
within the knowledge of a lay person, and it was based on his experience as a police
officer, having participated in photo arrays and having testified in court regarding
them. But we do not agree with Lavender’s characterization of the testimony as
suggesting that if a court admits a lineup its nonsuggestive nature is established as a
matter of law. The state never made that argument, and much of the testimony and
argument regarding the photo array revolved around whether it was suggestive. So,
clearly, the jury could not have been confused on whether that point had been
established.
{¶103} The problem with this line of testimony was that it simply wasn’t
relevant. But even though it was not relevant, counsel was not ineffective for failing
to object unless Lavender was prejudiced by that failure. In this case, the jury was
given the photographs and they were able to determine if the photo array was so one-
sided that picking Lavender from it was a foregone conclusion.
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{¶104} As to Grant, Lavender finally argues that he gave improper expert
opinion testimony about how homicide investigations are generally conducted and
gave improper testimony relating to the discovery process. As to the first issue, this
was proper lay opinion testimony under Evid.R. 701. One of the major thrusts of
Lavender’s defense at trial was that his arrest was the result of sloppy police work.
The state was permitted to contradict that assertion by having Grant, a supervisor of
homicide detectives, testify about the proper conduct of a homicide investigation.
{¶105} As to the discovery line of questioning, the state began by asking
Grant if he knew what discovery was.
A: Discovery means all the information we use to charge a
defendant will be turned over - - is to be turned over to the defendant’s
attorney for review.
Q: And is it your understanding as a police officer that we do
that or furnish that to the defendant through his attorney prior to
going to trial.
A: Yes.
Q: Now, have you ever heard the term or have you ever
engaged in conversation with any prosecutor about evidence favorable
to the defendant. Do you know what that is?
A: Say that again.
Q: Evidence favorable to the defendant?
A: Yes.
Q: What is that?
A: I mean, it is what it is in the statement; if we have evidence
that is favorable to the defendant, we have to turn that over to the
defense.
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Q: Assume for the sake of this hypothetical question that
you’ve got a homicide offense and you have an individual that you have
evidence committed the crime and you have a witness that comes
forward and says that person didn’t do that, somebody else did it.
If that information is inconsistent with your theory of the case,
is that something you disregard or is that something you furnish to the
prosecutor, that this witness said that person didn’t do it?
A: Ideally that information will be passed on to the
prosecutor’s office. You let them know what you have. I think the
evidence will speak for your investigation, but you do pass that
information.
Q: And then do you know what happens to that information
with respect to the prosecutor and the defense attorney?
A: Not off the top - - I mean, I don’t generally deal with that.
That’s more of a prosecutor situation how they handle that.
This testimony was elicited with regard to how the police handled the information
that had been provided to them by Davis. The police did not believe that Davis had
any useful information because he was first reluctant to talk at all, and when he did
he repeated information that he had learned from another source. Counsel for
Lavender relied heavily on the fact that the description given by Davis did not match
Lavender and that the police had improperly disregarded him. The testimony given
by Grant was designed to explain how such evidence is handled, and how defense
counsel learned of the evidence and to dispel the implicit argument that the state had
attempted to bury it. Unlike the testimony regarding the legal significance of a
motion to suppress, this was simply testimony about how certain information is
handled during the course of an investigation, based on Grant’s experience, and was
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helpful to the jury in that regard. Therefore, it fell within Evid.R. 701 and outside the
scope of Crim.R. 16(K).
{¶106} We now turn to the argument that Detective Gehring provided
improper expert opinion testimony. Lavender claims that Gehring gave improper
expert opinion testimony on the question of how discovery works in a criminal
prosecution, how people in a high-crime neighborhood behave and speak, the use of
burner phones and trap houses, the workings and identification of firearms, the
proper implementation of a photo array for identification, and the usefulness of a
composite sketch.
{¶107} At the time of his trial testimony, Detective Gregory Gehring had been
a police officer for a little over 20 years. He has been a homicide detective since
2006. He testified to his training in the police academy, his work as a district patrol
officer, his work in the personal crimes unit, and his transfer to the homicide
division. He also testified to his post-academy instruction.
{¶108} The questions that Gehring was asked about the discovery process
were similar to those asked of Grant. We conclude that they were designed to assist
the jury and properly admitted at trial.
{¶109} Next, Lavender claims that Gehring gave improper expert opinion
testimony regarding how people in high-crime areas behave and how they speak, that
Gehring improperly decoded slang for the jury, and the meaning of terms like
“burner phones” and “trap houses.” Gehring testified that, as a beat officer, he got to
know the people in the neighborhoods and how they communicated. He testified
that the “slang” is a form of language he frequently encounters at work. His
involvement with homicides that were drug-related caused him to learn that
vocabulary as well. This is all the type of experience that is appropriately relied upon
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when giving a lay opinion pursuant to Evid.R. 701. Trial counsel’s failure to object
was not improper.
{¶110} Additionally, Gehring was properly permitted to testify as to how a
firearm operates. Gehring had been a police officer for over 20 years and had fired a
gun “thousands of times.” Similarly, his experience with firearms would allow him to
render an opinion as to whether a particular picture contained an image of a
revolver.
{¶111} As to the appropriateness of the photo array, the state asked if the
array was problematic for being too suggestive, “as a police officer with the years of
experience that you have.” He said that he did not have a problem with the array.
But this series of questions was in response to questions asked of Gehring by defense
counsel on cross-examination, where counsel tried to get Gehring to admit that since
Lavender was the only individual in the array with a “chin strap” beard, the array was
unduly suggestive. This was pure lay opinion testimony, and not necessarily related
to his experience as a police officer. And, as we have indicated previously, the jury
had the opportunity to review the array and reach its own conclusions. Trial counsel
was not ineffective for failing to object on the basis that this was improper expert
testimony.
{¶112} Finally, Gehring testified that the composite sketch looked a lot like
Lavender, saying that “that’s the closest composite sketch looking to a suspect that I
can remember.” This is opinion testimony in only its loosest sense. The statement
was not being offered to literally establish that it was the best composite picture he
had ever seen. Simply that the composite bore a remarkable resemblance to
Lavender, a fact the jury could see for itself. The fact that Gehring had had a chance
to see many more composite pictures than the average person does not mean that the
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observation was any more informative. It was not opinion testimony, and trial
counsel was correct not to object to it.
{¶113} In his brief, Lavender cites a series of other passages “for additional
improper opinion testimony,” but presents no argument as to them. We have
reviewed them all and find that none were expert opinions which would have
triggered Crim.R. 16(K).
{¶114} Having reviewed every instance cited by Lavender in which he claims
that the state improperly offered expert opinion testimony, we find no instances
where that was the case. We did hold that one section of testimony—relating to the
role of a motion to suppress and its legal significance—was not relevant. But we
further hold that counsel was not ineffective for failing to object because the issue
was one the jury could determine on its own. And, nonetheless, the testimony was
not improper because it was not expert opinion testimony.
Prosecutorial Misconduct – Hearsay Testimony
{¶115} Lavender next argues that counsel was ineffective for failing to object
to the prosecutor’s misconduct through his use of hearsay testimony. We disagree.
{¶116} Lavender first claims that the prosecutor improperly elicited hearsay
testimony from the witness who created the composite sketch based on the
description given by Coulter. Lavender claims that the Ohio Supreme Court has not
addressed the issue. But it has. The court said
A drawing of an alleged assailant sketched by a police artist, a poster
reproduction of that drawing, a ‘mug shot’ of the accused taken after
arrest, and the testimony of police officers as to statements describing
the accused made to them by a prosecuting witness, are admissible
solely to indicate the process by which the accused was identified,
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where that process is under attack, and to corroborate that
identification.
State v. Lancaster, 25 Ohio St.2d 83, 267 N.E.2d 291 (1971), paragraph four of the
syllabus. The testimony was admitted for the purpose of explaining how the image
was produced. Therefore, trial counsel’s failure to object was not ineffective
assistance.
{¶117} Lavender then argues that trial counsel was ineffective for failing to
object to the prosecutor soliciting hearsay testimony from officers who testified to
what Coulter told them he saw the night of the shooting and what Johnson told them
that he had heard. Examining the testimony, it does not seem that the testimony was
elicited for a reason other than for the truth of the matter asserted. Had trial counsel
objected, the objections might well have been sustained. But both Johnson and
Coulter testified at trial, so the failure to object was not prejudicial. Additionally, the
hearsay statements were isolated incidents in a two-week trial, and their impact as a
result was minimal.
Prosecutorial Misconduct – Text Messages
{¶118} Lavender claims that trial counsel was ineffective for failing to object
to the state’s use of unduly prejudicial social media and text messages. The state
introduced the message, which we have previously reviewed, regarding when
Lavender shot into a car. Additionally, there were references on Lavender’s
Facebook page where he referred to himself as “El Chapo.” These kind of messages,
as we have indicated previously, fed into trial counsel’s narrative that all of these
messages and posts were the product of a teenager just putting on the affectations of
a street-wise tough guy, in keeping with the culture in which he was engaged.
Whether that was the best strategy for counsel to adopt is a matter about which we
need not speculate. “Debatable trial tactics generally do not constitute ineffective
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assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857
N.E.2d 547, ¶ 116.
Cross-Examination
{¶119} Next Lavender claims that trial counsel was ineffective for failing to
effectively cross-examine the state’s witnesses, particularly Detective Gehring.
Lavender points to numerous instances in which he claims that Gehring’s answers
were unresponsive. Having reviewed the testimony, it is clear that Gehring and trial
counsel engaged in some heated exchanges. But one of the cores of counsel’s trial
strategy was showing that the state’s “professional witnesses” were actively hostile to
the defense—interested only in seeing Lavender convicted and unwilling to consider
other possibilities and vigorous in their defense of their theory of the case. This was
an extremely compelling trial strategy that became a centerpiece of counsel’s closing
argument. And none of the “nonresponsive” answers were anything that the
detectives had not testified to on direct examination. Counsel was not ineffective for
choosing to take this approach.
Cooperative Informant
{¶120} Lavender next argues that counsel was ineffective for failing to object
to the testimony of Johnson, the cooperative witness. But he has provided no basis
upon which trial counsel could have challenged Johnson’s testimony. And this court
addressed this issue in State v. McCoy, 1st Dist. Hamilton No. C-090599, 2010-
Ohio-5810. In that case, the appellant argued that the trial court erred when it
overruled his “combined pretrial motions for a reliability hearing and for the
exclusion of the cooperating witnesses’ testimony.” The court noted that the test of
witness credibility is cross-examination, and it rejected the suggestion that the
testimony of a cooperating witness is unreliable as a matter of law. Id. at ¶ 20. If
trial counsel had sought to prevent Johnson’s testimony, he would have been
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unsuccessful, and Lavender has not provided this court with a reason for us to
reconsider our holding on the matter.
Eyewitness Identification Expert Testimony
{¶121} Lavender next claims that trial counsel was ineffective for failing to
object to the testimony of the state’s “expert” witness on eyewitness identification for
making equivocal statements about the reliability of the procedure. But this
testimony was taken from the hearing before the trial court on Lavender’s motion to
suppress the identification. The jury was not privy to this testimony, and the Rules
of Evidence do not apply to motions to suppress. See State v. Boczar, 113 Ohio St.3d
148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17. Trial counsel was not ineffective for
failing to object.
Sentencing Mitigation
{¶122} Lavender next claims that counsel was ineffective for failing to
present effective mitigation evidence. He claims that trial counsel failed to effectively
argue the favorable mitigating information about his past, and did not call any
witnesses to speak on his behalf. Defense counsel’s decision to call or not call a
mitigation witness at sentencing is a matter of trial strategy; debatable trial tactics
generally do not constitute ineffective assistance of counsel. See State v. Pickens, 141
Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 222. While Lavender pointed
out that he had contact with several family members, even a cursory review of the
record in this case would indicate that calling at least some of them would be a bad
decision. And nothing in the record indicates that anyone Lavender listed would
have been helpful to his case. Trial counsel made an argument based on the records
presented to the trial court that, if accepted, would have resulted in a reduced
sentence. The fact that the trial court did not agree does not mean that defense
counsel was ineffective in the attempt.
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Cumulative Effect
{¶123} Lavender finally argues that the cumulative effect of all the above
referenced instances of ineffective assistance of counsel was such that, even if the
singular instances do not represent reversable error, the weight of the total deficient
performance does. After our review, the only arguable instance of ineffective
assistance was when trial counsel failed to object to hearsay testimony from officers
who testified to what Johnson and Coulter told them. Therefore, there is no
cumulative effect to consider.
{¶124} For the reasons set forth above, we overrule Lavender’s third
assignment of error.
Prosecutorial Misconduct
{¶125} In his fourth assignment of error, Lavender claims that he was denied
his right to due process because of prosecutorial misconduct. The test for whether
prosecutorial misconduct mandates reversal is whether the prosecutor’s remarks or
actions were improper, and, if so, whether they prejudicially affected the substantial
rights of the accused. State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780
N.E.2d 21, ¶ 45. The touchstone of the analysis “is the fairness of the trial, not the
culpability of the prosecutor.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445,
25 N.E.3d 1023, ¶ 110, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71
L.Ed.2d 78 (1982).
{¶126} Under this assignment of error, Lavender’s entire argument is that
“[t]his trial had numerous instances of prosecutorial misconduct. These are outlined
in [the] first three assignments of error of this brief and incorporated by reference
herein. The prosecutor’s improper comments in closing arguments and the
introduction of inadmissible evidence prejudiced the defendant’s right to a fair trial.”
For the reasons set forth above, we overrule Lavender’s fourth assignment of error.
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Sentencing
{¶127} In his fifth assignment of error, Lavender claims that the trial court
erred when it sentenced him to life without the possibility of parole. We disagree.
{¶128} This court will only modify or vacate a sentence under R.C.
2953.08(G)(2) if we find clearly and convincingly that either the record does not
support the mandatory sentencing findings or the sentence is otherwise contrary to
law. State v. White, 2013-Ohio-1325, 997 N.E.2d 629 (1st Dist.).
{¶129} In Ohio, when a juvenile faces the sentence of life without the
possibility of parole, the trial court “in exercising its discretion under R.C.
2929.03(A), must separately consider the youth of a juvenile offender as a mitigating
factor before imposing a sentence of life without parole.” State v. Long, 138 Ohio
St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 1, citing Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
{¶130} Having reviewed the record, we conclude that the trial court expressly
considered Lavender’s youth at the time of the offense. In discussing this factor, the
trial court noted that “the victim’s youth is to be considered as a mitigating factor for
purposes of sentencing with the expectation or understanding that the imposition of
a life sentence without the possibility of parole is something not to be entered into
lightly and that the Court needs to be aware of the possible Eighth Amendment
ramifications * * *.”
{¶131} Additionally, Lavender argues that the trial court did not give proper
consideration to the various mitigating factors presented. But we cannot say what
weight was given to the various evidence that the trial court considered, other than to
say that the trial court clearly found that the aggravating factors outweighed the
mitigating factors. As the Eighth Appellate District noted, “We cannot independently
determine the weight given to each factor to arrive at a different sentencing
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conclusion or attempt to divine what factors the trial court deemed more relevant in
the absence of specific findings. The court, having considered what the law requires,
rendered a sentence within the bounds of the law.” State v. Ongert, 8th Dist.
Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 15. We overrule Lavender’s fifth
assignment of error.
Eyewitness Identification
{¶132} In his sixth assignment of error, Lavender claims that the trial court
erred when it allowed the testimony regarding Coulter’s identification of Lavender
from the photo array. He claims that the photo array was unduly suggestive, and
that the identification was unreliable. We disagree.
{¶133} The photo array was administered by Detective Grant, who was a
blind administrator. Grant completed and read the blind administrator form to
Coulter. In addition to the photograph of Lavender, the photographs of five other
individuals were placed in separate folders. Grant showed the photos to Coulter one
at a time, gave him as much time as he needed to review them, and allowed him to
make a determination as to whether the person in the photograph looked familiar.
Grant recorded anything that Coulter said about the photographs. Grant did not give
any verbal or nonverbal cues regarding any of the subjects and gave no indication to
Coulter if he picked the person the police suspected. Coulter initially said that the
person in the fourth photograph looked like the suspect, but when he saw the fifth
photograph, he positively identified Lavender.
{¶134} Lavender claims that the photo array was unduly suggestive because
his photo was the only one with a “chin strap” beard. But, his was not the only one
with facial hair generally. And, further, Coulter was instructed at the time to place
little weight on hair or facial hair, as that is a feature of a person’s appearance that
can be easily changed. This court has held that an array was not unduly suggestive
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even when only the suspect had a curly hairstyle, where the images are otherwise
similar. See State v. Taylor, 1st Dist. Hamilton No. C-020475, 2004-Ohio-1494.
{¶135} This court has independently reviewed the six images. While
Lavender’s photograph is the only one with a “chin strap” beard, others had facial
hair and none of the images stood out remarkably. Neither the array itself nor the
manner in which it was administered was unduly suggestive.
{¶136} We also reject the argument that the identification was improper
because Coulter had positively identified someone other than Lavender before
identifying him. When shown photo four, Coulter said that “that looks more like
him.” In saying that, Coulter was saying that photo four looked more like the
perpetrator than the first three did. That was not a positive identification. So, when
he got to the fifth photo and said “that looks exactly like him,” that was Coulter’s
positive identification of Lavender. The trial court did not err when it allowed the
testimony of the identification to be presented to the jury. We overrule his sixth
assignment of error.
Transfer to Adult Court
{¶137} In his seventh assignment of error, Lavender claims that the juvenile
court erred when it determined, after conducting an amenability hearing, that
Lavender’s case should be transferred to the general division of the common pleas
court for trial as an adult. But the trial court complied with the statutory
requirements, and the record does not support the conclusion that the trial court
abused its discretion.
{¶138} The determination of whether a child is amendable to rehabilitation
such that justice requires the juvenile court to retain jurisdiction over a case is left to
the sound discretion of the juvenile court. State v. Amos, 1st Dist. Hamilton No. C-
150263, 2016-Ohio-1319, ¶ 38. “When determining whether a child is amenable to
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treatment within the juvenile system, the juvenile court must consider the factors
weighing in favor of and against transfer, as outlined in R.C. 2152.12(D) and
2152.12(E), as well as any other relevant factor.” State v. Marshall, 1st Dist.
Hamilton No. C-150383, 2016-Ohio-3184, ¶ 14.
{¶139} R.C. 2152.12 is silent with regard to how a juvenile court should weigh
the factors in R.C. 2152.12(D) and (E). Thus, the juvenile court has the discretion to
determine how much weight should be accorded to any given factor. See State v.
Morgan, 10th Dist. Franklin No. 13AP-620, 2014-Ohio-5661, ¶ 37. “As long as the
court considers the appropriate statutory factors and there is some rational basis in
the record to support the court’s findings when applying those factors, [this court]
cannot conclude that the trial court abused its discretion in deciding whether to
transfer jurisdiction.” State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856
N.E.2d 285, ¶ 10 (4th Dist.).
{¶140} The record indicates that the juvenile court considered the
appropriate statutory factors and identified those it found to be significant. Of note
was the physical harm caused, the use of a firearm, Lavender’s maturity, and the
safety of the community. The fact that the juvenile court noted, at one point, “five
years in exchange for a life was insufficient” does not mean that the trial court did
not apply the proper standard. This is especially true in light of the fact that the
juvenile court expressly stated that it had. On this record, we cannot say that the
trial court abused its discretion. We overrule Lavender’s seventh assignment of
error.
Cumulative Error
{¶141} In his eighth assignment of error, Lavender argues that the
cumulative effect of the errors outlined in the previous assignments of error require
reversal. Pursuant to the doctrine of cumulative error, “a conviction will be reversed
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when the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of the errors does not individually
constitute cause for reversal.” State v. Pyles, 7th Dist. Mahoning No. 13 MA 22,
2015-Ohio-5594, ¶ 103, citing State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623(1995). However, the cumulative-error doctrine “does not apply to cases that are not
marked by multiple instances of harmless error.” State v. Banks, 10th Dist. Franklin
No. 03AP-1286, 2005-Ohio-1943, ¶ 23, citing Garner. We have not found multiple
instances of harmless error in this case. We overrule Lavender’s eighth assignment
of error.
Conclusion
{¶142} Having considered and overruled all eight of Lavender’s assignments
of error, we affirm the judgment of the trial court.
Judgment affirmed.
MYERS, J., concurs separately.
BERGERON, J. dissents.
MYERS, J., concurring separately.
{¶143} I write separately because I believe there were some errors in the
trial that need to be addressed. First, I agree with the dissent as to a few of the 15
series text messages. I would find that admission of the text messages stating that
when Lavender was 14 he took two people’s lives, and he had shot and robbed a lot of
people, were not admissible under Evid.R. 404 and should have been excluded. And,
had defense counsel not withdrawn his or her objection, I would also find
inadmissible Lavender’s text that he had shot into a car. But I find that in light of the
other evidence produced at trial, and the instructions of the trial court, any error was
harmless. In other words, the outcome would have been the same.
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{¶144} I also would find that counsel was deficient in not objecting to some
of the prosecutor’s statements, in particular, statements about the “family business”
of being a hit man and comments that the text messages were used for a limited
purpose—“to understand who the defendant is.” As to the latter, that is exactly what
the statements could not be used for. And for the same reason, I would find these
comments by the prosecutor improper. But again, considering all the evidence,
Lavender cannot establish that he was prejudiced by this deficiency.
BERGERON, J., dissenting.
{¶145} I respectfully dissent and would find that the admission of state’s
Exhibit 16(A), the photograph with Mr. Lavender holding a gun aimed at the camera,
and various texts in the state’s Exhibit 15 (the series of texts messages), constitutes
reversible error. Ostensibly admitted under Evid.R. 404(B), to demonstrate motive
and intent, admission of such evidence should be strictly construed against the state
and conservatively applied by trial courts. State v. DeMarco, 31 Ohio St.3d 191, 194,
509 N.E.2d 1256 (1987). The evidence here was probative of neither motive nor
intent, and should have never been presented to the jury. And even if this evidence
could survive scrutiny under Evid.R. 404(B), I would find that it fails an analysis
under Evid.R. 403 given its lack of relevance and its corresponding prejudicial
nature. See State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, ¶ 20. Because the trial court did not properly evaluate this evidence, it abused
its discretion in such a manner that tainted the entire trial.
{¶146} From the opening bell of this trial, the state endeavored to paint Mr.
Lavender as an unsavory character. Calling Mr. Lavender a “gangster,” the state
insisted that he was destined to become an assassin: “The evidence is going to show
it’s a family business. This is what he does. This is how he was trained. This is what
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he thinks.”7 The photograph, according to the state, “exhibit[s] who he is.” Coupled
with the text messages, these exhibits played a pivotal role in forging a damning
portrait of Mr. Lavender in the jury’s mind, unrelated to the charged offense.
A.
{¶147} The state’s theory of the case was that Mr. Lavender, in his
desperation for money, agreed to engage in a murder-for-hire plot that culminated in
Mr. Lipscomb’s death. The state posited that various text messages illuminated this
monetary despair, which allegedly revealed an “escalating” need for cash. Admitted
here to show motive and intent, this type of evidence must “be temporally and
circumstantially connected to the operative facts of the offense alleged.” State v.
Griffin, 142 Ohio App.3d 65, 72, 753 N.E.2d 967 (1st Dist.2001). Spanning
approximately four months, the messages disclose conversations ranging from
asking family for money to attend a festival to discussing robberies (past and
contemplated), drug dealing, and prior killings and/or shootings. Noticeably absent
is any indication of Mr. Lavender’s involvement in a lucrative teenage assassin
enterprise. Far from constituting a timeline of desperation, the texts merely served
to cast Mr. Lavender as a “bad actor,” capable of committing other violent crimes and
therefore likely to kill for money. See State v. Hart, 2018-Ohio-3272, 118 N.E.3d
454, ¶ 41 (8th Dist.), quoting State v. Sargent, 2015-Ohio-704, 29 N.E.3d 331, ¶ 31
(6th Dist.) (admission of other acts evidence erroneous despite limiting instruction,
when other acts were “ ‘very similar to the charged offense or of an inflammatory
nature.’ ”). The texts, with a mixture of teenage angst and perhaps braggadocio,
chronicle a series of crimes allegedly committed or contemplated by Mr. Lavender:
7 I also agree with Judge Myers regarding the ineffective assistance in failing to object to certain
comments.
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 April 2014 text where he admits to “sell[ing] heroin [and] weed” for
money (in other words, he’s a drug dealer);
 May 2014 text asking a friend if he knows anyone that Mr. Lavender
could rob;
 June 2014 text related to a marijuana transaction;
 June 2014 text in which he admits that he “took a [] life befo[re]” and
that he “tried to kill” additional people;
 June 2014 text discussing a potential robbery target;
 July 2014 text admitting that “when I was 14 I took two [peoples’]
life’s [sic]” and that he “shot” numerous people and “rob[b]ed”
numerous others;
 July 2014 text regarding a robbery he committed at 14 involving a
drug transaction; and
 July 2014 text regarding an aborted drug transaction in which he
admitted to shooting nine times at a car.
None of these texts suggest Mr. Lavender’s involvement in a murder-for-hire
scheme, or give any inkling as to his “motive” or “intent” to perpetrate such an
offense.8 Instead, these reflect admissions of past crimes (drug transactions, killings,
and robberies) as well as contemplated crimes (robberies and drug-related).
{¶148} Interspersed within these texts are various texts expressing a desire
for money (such as asking for $25 to attend a “festival [i]n colerain” or bemoaning
the fact that his cell service was about to be cut off). The state’s insistence that this
all shows that he needs money is an overreach—many (if not most) criminal offenses
8 If we engaged in a text-by-text review of each missive, I would probably find a handful of the
texts closer in proximity to the shooting admissible. But this would not alter my overall analysis,
because those few texts are more than drowned out by the significance of the inadmissible ones.
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are committed because someone wants money. Exploiting a defendant’s poverty or
desire for money as a justification to parade a variety of past and contemplated
misdeeds before the jury runs roughshod over Evid.R. 404(B) and poses grave risks
to the integrity of criminal trials. Regardless, even if the texts about money showed
motive here, those texts could have been selectively presented to the jury without all
of the concomitant criminal admissions. Take his admission in different texts that he
killed and shot people previously—those texts have nothing to do with money,
nothing to do with any murder-for-hire scheme, and nothing to do with the offense
at hand (the texts predated the death of Mr. Lipscomb). They thus provided nothing
useful to the jury other than serving as a vehicle to “prove the character of a person
in order to show action in conformity therewith.” Evid.R. 404(B). He’s a heartless
killer—so the theory goes—and that proves he killed here too. But Evid.R. 404(B)
was designed to avoid exactly that.
{¶149} Dripping with prejudicial effect, the texts were also inadmissible (at
the very least) under Evid.R. 403. Mr. Lavender stood trial charged with a contract
killing, and the texts enabled the state to brandish evidence that he had engaged in a
range of illegal behavior (particularly prior shootings and killings) unrelated to the
death of Mr. Lipscomb. This is precisely the type of unfairly prejudicial evidence that
Evid.R. 403(A) excludes because it “ ‘appeals to the jury’s emotions rather than
intellect’ ” and invites the jury to rely on an improper basis for its decision. See State
v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 24, quoting
Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001);
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 89 (noting the
danger of unfair prejudice refers to evidence which suggests a decision on an
improper basis).
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{¶150} The majority quotes the state’s justification for the texts as turning
on a timing question: “at some point it switches. In about June, it switches from
trying to rob people to becoming a hitman.” But this is doubly misguided. First, if
June is the real lynchpin, then what justification exists to wade through all of the
prior texts (including scores I have not summarized here)? Second, and more
importantly, it rests upon a serious mischaracterization—one can search the record
in vain for any substantiation of that point. Texts about acting as a hitman might
well be admissible on this record, but the trouble is there aren’t any. The state
jumped in with both feet on the hitman theory, but it can’t bootstrap admissibility by
conjuring up nonexistent evidence.
B.
{¶151} Similarly, the state successfully introduced the photograph depicting
Mr. Lavender holding an object “consistent” with the shape of a revolver in his left
hand. Based on testimony from the police’s informant, Mr. Johnson, that he
overheard Mr. Lavender discussing the upcoming hit and saw him in possession a
revolver, the state then hypothesized that a .22 caliber revolver must have been the
murder weapon (despite never actually recovering any evidence beyond the caliber of
the bullet). In the state’s calculus, the “gun” depicted in Mr. Lavender’s left hand
became vital because it could have used .22 caliber bullets, could have been a
revolver, and which could have been the murder weapon.
{¶152} In the same photograph, however, Mr. Lavender also stands, grim-
faced, right arm outstretched, pointing an unrelated gun directly at the camera. The
alleged revolver in his left hand is barely perceptible, overshadowed by the much
larger gun aimed at the camera. Words really cannot do this exhibit justice, so I
include it below:
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{¶153} The prejudicial effect of this photograph needs little elaboration. At
trial no one disputed that the gun (in fact a pellet gun) facing the camera was
unrelated to the murder. Based on the attenuated nature of the photograph, the
state’s introduction of such unrelated weapons evidence merely portrayed Mr.
Lavender “as a person of violent character who had acted in conformity with his
propensity to kill[.]” State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d
821, ¶ 48; compare State v. Gordon, 2018-Ohio-2292, 114 N.E.3d 345, ¶ 79 (8th
Dist.) (admission of evidence that defendant carried a gun was error when alleged
gun was never recovered and only speculation that a revolver was used in the killing)
with State v. Connally, 10th Dist. Franklin No. 16AP-53, 2016-Ohio-7573, ¶ 30, 34
(admitted photographs highly relevant when gun matching description of the gun
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used to commit the crime appeared, despite the fact that another unrelated gun
appeared in the photo).
{¶154} If you asked the average person on the street what that photo
depicts, they would probably leap to the state’s conclusion—a “gangster”—and agree
that that person needs to be locked away. Not blind to this point, the state assured
the jury that this photo (and a couple of others) reveals “who he is.” It is little
wonder the state’s zeal to highlight this picture to the jury, but Evid.R. 403 exists to
avoid prejudicial scenarios such as what occurred here. Mr. Lavender should not be
convicted because he looks the part, but rather because the evidence proves that he
committed the offense beyond a reasonable doubt.
C.
{¶155} To be sure, as the majority points out, the trial court gave several
limiting instructions. But there are two things wrong with this. First, as noted
above, many of the worst texts had nothing to do with any motive or intent—they just
confessed to awful crimes. Assuring the jury that the text is “being offered for the
limited purpose to show motive and intent” (in the words of the trial court) would
only hopelessly confuse the jury because it is probative of neither. Moreover, the
inherently prejudicial nature of the photograph and text messages could not be cured
by a limiting instruction, regardless of how many times it was incanted. See State v.
Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 39 (noting that
limiting instruction was insufficient to overcome the prejudice of the improperly
admitted evidence); State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d
1181, ¶ 50 (French, J., concurring in judgment only) (explaining that a limiting
instruction does not guarantee admissibility when the danger of unfair prejudice
substantially outweighs the evidence’s probative value); 1980 Staff Note, Evid.R. 105
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(“[I]f there would be danger of unfair prejudice, evidence * * * should not be
admitted even with a limiting instruction.”).
{¶156} Without the text messages and photograph, the remaining evidence
was reduced to the eyewitness identification and the information provided by Mr.
Johnson. And each had credibility issues. Mr. Coulter’s description of Mr. Lavender
varied substantially from Mr. Lavender’s actual physical appearance. Mr. Coulter
described a perpetrator with blue eyes and standing approximately 5 feet 7 inches or
5 feet 8 inches tall; Mr. Lavender has brown eyes and stands over six feet tall. And
his description of the perpetrator’s skin admittedly varied, as at times the perpetrator
was light-skinned, dark-skinned, and brown-skinned. Mr. Coulter also described
observing the perpetrator from a “couple of feet” away, when pictures of the scene
revealed the impossibility of that characterization. As to Mr. Johnson’s testimony,
questions of bias were self-evident. Testimony adduced at trial revealed that Mr.
Johnson divulged the information regarding the identity of Mr. Lipscomb’s killer
only after his apprehension for suspected criminal activity, and for which no charges
were ever filed. Mr. Johnson also appeared to have quite a résumé of cooperating
with the police in order to avoid charges or secure more lenient sentencing on his
myriad outstanding charges. In other words, he seemed like a professional snitch—
always in the right place at the right time to overhear inculpatory remarks by others.
{¶157} While the jury was free to weigh this testimony as they saw fit, the
admission of the above evidence certainly reassured the jury that Mr. Lavender was a
“bad actor” (or a “gangster,” as the state posited) and interfered with the jury’s ability
to properly weigh the testimony from Messrs. Coulter and Johnson, ultimately
allowing them to accord greater weight and credibility to the witness identification
and informant. See State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 45 (6th Dist.)
(improper admission of expert testimony inhibited jury’s ability to properly weigh
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the evidence). This danger of “a potential for prejudice with respect not only to the
weighing of the evidence but also the creation in the jury’s mind of an urge to punish
for past acts” is precisely the justification for excluding such evidence. Griffin, 142
Ohio App.3d at 71, 753 N.E.2d 967. As we explained in Hall, where the improper
evidence “likely colored the jury’s ability to properly weigh the credibility of the
witness[es],” we cannot have “confidence that the error did not impact the outcome.”
State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-2985, ¶
24-25; see State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶
25-29 (appellate court must be convinced that the error was harmless beyond a
reasonable doubt).
{¶158} And the error is amplified by the prosecution’s trial strategy to paint
Mr. Lavender as a violent criminal desperate to kill for money. See Griffin at 79
(magnitude of prosecution’s use of other acts evidence amplified when “was not
isolated within the context of the trial, but was part of what was manifestly a strategy
to portray [the defendant] as an emotionally unstable person to be feared for his
violent propensities”); id. at 85 (“[I]t would be disingenuous to suggest that the
evidence against [the defendant] was so overwhelming that there was no reasonable
possibility that the improperly admitted other-acts and character evidence did not
contribute to [the defendant’s] conviction.”); State v. Johnson, 71 Ohio St.3d 332,
341, 643 N.E.2d 1098 (1994) (irrelevant and unduly prejudicial evidence “was not
harmless error, especially in light of the weakness of the evidence in this case and the
state’s undue reliance on impermissible character evidence in its prosecution[.]”).
{¶159} Therefore, I would find that the admission of the photograph and
text messages constituted errors that cannot be dismissed as harmless. Before we
send this defendant to prison for the rest of his life, I would afford him a new trial
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limited to evidence probative of whether he committed the murder at hand and free
from the taint of improper character evidence. I respectfully dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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