eCases

. Moreover, Lester argues in his
second assignment of error that the State did not provide him with sufficient notice
that it intended to use the “other acts” evidence at trial. In his third assignment of
4
To the extent Lester argues that the “other-acts” test was applicable here, his argument is specious. See State
v. Franklin,

62 Ohio St.3d 118

, 122 (1991), citing State v. Lott,

51 Ohio St.3d 160

, Roberts, 62 Ohio St.2d at
175, and Torres, 66 Ohio St.2d at 340, (stating “an accused is not prejudiced by joinder when simple and
direct evidence exists, regardless of the admissibility of evidence of other crimes under Evid.R. 404(B).”).
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Case No. 14-18-21
error, Lester argues that the trial court permitted the State to introduce evidence of
bad acts committed by witnesses which infringed on his constitutional rights.
Standard of Review
{¶37} “‘Generally, evidence which tends to show that the accused has
committed other crimes or acts independent of the crime for which he stands trial is
not admissible to prove a defendant’s character or that the defendant acted in
conformity therewith.’” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-
7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No.

04 CO 56

, 2005-
Ohio-6779, ¶ 24, citing State v. Elliott,

91 Ohio App.3d 763

, 770 (3d Dist.1993) and
Evid.R. 404. “‘However, there are exceptions to the general rule: “It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”’” State
v. Bagley, 3d Dist. Allen No. 1-13-31,

2014-Ohio-1787

, ¶ 56, quoting State v. May,
3d Dist. Logan No. 8-11-19,

2012-Ohio-5128

, ¶ 69, quoting Evid.R. 404(B). See
also R.C. 2945.59. “‘The list of acceptable reasons for admitting testimony of prior
bad acts into evidence is non-exhaustive.’” Bagley at ¶ 56, quoting State v. Persohn,
7th Dist. Columbiana No.

11 CO 37

2012-Ohio-6091

, ¶ 23, citing State v. Melton,
11th Dist. Lake No. 2009-L-078,

2010-Ohio-1278

, ¶ 78, and citing State v. Faye,
3d Dist. Wyandot Nos. 16-99-08 and 16-99-09,

2000 WL 566741

, *4 (May 4, 2000).
-22-
Case No. 14-18-21
{¶38} Evidence of other acts is generally admissible if it is offered for a
purpose other than to prove the character of a person in order to show action in
conformity with that character; it is relevant when offered for that purpose; and the
danger of unfair prejudice does not substantially outweigh its probative value. State
v. Kirkland,

140 Ohio St.3d 73

2014-Ohio-1966

, ¶ 68, citing Williams,

134 Ohio St.3d 521

, at ¶ 20 and Evid.R. 401, 403, and 404(B). Evidence is
relevant when it has “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.”         Evid.R. 401.     “Under Evid.R. 403(A),
‘[a]lthough relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.’” State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-
1788, ¶ 122, quoting State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-33,

2005-Ohio-3761

, ¶ 71. “‘Unfair prejudice is that quality of evidence which might
result in an improper basis for a jury decision.’”

Id.,

 quoting State v. Calhoun, 11th
Dist. Ashtabula No. 2010-A-0057,

2012-Ohio-1128

, ¶ 82.
{¶39} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice.     State v. Conway,

109 Ohio St.3d 412

, 2006-
Ohio-2815, ¶ 62, citing State v. Issa,

93 Ohio St.3d 49

, 64 (2001), citing State v.
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Case No. 14-18-21
Maurer,

15 Ohio St.3d 239

, 265 (1984). An abuse of discretion implies that the trial
court acted unreasonably, arbitrarily, or unconscionably. Adams, 62 Ohio St.2d at
157. However, “if the party wishing to exclude evidence fails to contemporaneously
object at trial when the evidence is presented, that party waives for appeal all but
plain error.” Bagley at ¶ 53-54, citing State v. Hancock,

108 Ohio St.3d 57

, 2006-
Ohio-160, ¶ 59-60, State v. Barrett, 4th Dist. Scioto No. 03CA2889, 2004-Ohio-
2064, ¶ 20, and State v. Lenoir, 2d Dist. Montgomery No. 22239,

2008-Ohio-1984

,
¶ 19.
{¶40} “Crim.R. 52(B) governs plain-error review in criminal cases.” Bagley
at ¶ 55, citing State v. Risner,

73 Ohio App.3d 19

, 24 (3d Dist.1991). “A court
recognizes plain error with the utmost caution, under exceptional circumstances,
and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist. Hardin No. 6-
1414,

, ¶ 63, citing State v. Saleh, 10th Dist. Franklin No. 07AP-
431,

2009-Ohio-1542

, ¶ 68. Under plain-error review, “[w]e may reverse only when
the record is clear that defendant would not have been convicted in the absence of
the improper conduct.”

Id.,

 citing State v. Williams,

79 Ohio St.3d 1

, 12 (1997).
“Other-acts” analysis
{¶41} Initially, we must first determine whether Lester preserved this issue
(under his second and third assignments of error) on appeal. Lester’s arguments
center around the testimonies of Jason Maynard (“Maynard”), Samantha Righter
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Case No. 14-18-21
(“Righter”), Cassidy Manns (“Manns”), Alyssa Carver (“Carver”), Todd Frye
(“Frye”), Kaylee Earles (“Earles”), Timothy Holton (“Holton”), and Matthew
Wright (“Wright”). We note, that Lester objected to the testimonies of Maynard,
Righter, and Manns, as to relevance. (Oct. 30, 2018 Tr., Vol. I, at 78-79, 127-132,
136-140). Further, Lester objected to the testimony of Carver on the basis that her
testimony was inadmissible under Evid.R. 404(B). (Oct. 31, 2018 Tr., Vol. II, at
177). However, Lester failed to object to the testimonies of Frye, Earles, Holton,
and Wright. (Oct. 30, 2018 Tr., Vol. II, at 198, 210); (Oct. 31, 2018 Tr., Vol. II, at
200-201); (Nov. 1, 2018 Tr., Vol. I, at 98); (Nov. 1, 2018 Tr., Vol. II, at 188). And,
based on our review of the record, we cannot conclude that the admission of the
testimonies of Frye, Earles, Holton, and Wright amounted to plain error. As such,
we will only address whether the testimonies of Maynard, Righter, Manns, and
Carver are subject to Lester’s assignments of error.
Maynard’s, Righter’s, Manns’s, and Carver’s Testimony
{¶42} Lester contends that Maynard, Righter, Manns and Carver were
permitted to testify to “other acts” that occurred outside of the indicted-time frames.
Because Lester argues that the facts before us involve “other acts” evidence under
Evid.R. 404(B), we apply the three-step analysis set forth in State v. Williams,

134 Ohio St.3d 521

, at ¶ 19-20. “The first step is to consider whether
the other acts evidence is relevant to making any fact that is of consequence to the
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Case No. 14-18-21
determination of the action more or less probable than it would be without the
evidence.” Id. at ¶ 20, citing Evid.R. 401. “The next 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 the other
acts evidence 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.,
citing Evid.R. 403.
Maynard’s Testimony:
{¶43} In the State’s case in chief during its direct examination of Maynard,
the following exchange occurred to which Lester’s counsel objected:
[State of Ohio]:          Okay. What’s the farthest you ever drove
to make a delivery?
[Maynard]:                I mean, all around Columbus. All around
Delaware and, I mean --
[Lester’s Trial Counsel]: I’m going to object as to relevancy, Your
Honor.
[State of Ohio]:          I’m trying to determine, Your Honor, how
far he drove that night.       It occurred
-26-
Case No. 14-18-21
repeatedly, so I’m trying to figure out how
far he drove.
[The Trial Court]:        Then ask him how far he drove that night.
[State of Ohio]:          So, how far did you drive on August 17,
2017?
[Maynard]:                That--I-- can’t answer that because I don’t
remember exactly at that time. After that
happened, just like today, I could not tell
you who I went to that day. Who I went to
that night. I mean, I don’t -- I can’t recall
where I went that day.
(Oct. 30, 2018 Tr., Vol. I, at 78). After the objection, the trial court ordered the
State to rephrase the question. Thereafter, no further objection by Lester’s trial
counsel occurred. Since Lester’s trial counsel’s failed to object to the rephrased
question, and under the facts presented, we apply plain error. See Crim.R. 52(B).
Assuming, arguendo, that the State’s question was an attempt to elicit “[e]vidence
of [Lester’s] other crimes, wrongs, or acts” outside of the indicted-time frames and
in different jurisdictions which would be inadmissible “to show action in
conformity therewith”, Maynard’s response was limited to the State’s rephrased
question which confined Maynard’s answer to acts related to the indicted-time
-27-
Case No. 14-18-21
frame for the Marysville-hotel case. Evid.R. 404(A). (See Oct. 30, 2018 Tr., Vol.
I, at 78). Here, the State’s rephrased question related directly to Counts One and
Two. (Case No. 2018-CR-0061, Doc. No. 1). And, under the facts before us, the
admission of this evidence does not implicate Evid.R. 404(B). State v. Carter, 3d
Dist. Allen No. 1-15-62,

2017-Ohio-1233

, ¶ 73, (concluding that Evid.R. 404(B)
is “not implicated “in situations where the act is related to the crime or has a
connection to the offense.”). Evid.R. 404(B) applies to the admission of “other
acts” extrinsic to the charged offense and not those acts intrinsic to the offense
because they are outside the purview of Evid.R. 404(B). State v. Hill, 5th Dist.
Stark No. 2018CA00077,

2019-Ohio-3432

, ¶ 51-52, citing Jordan v. Dayton
Testing Lab., 2d Dist. Montgomery No. 19741,

2004-Ohio-2425

, ¶ 48 and United
States v. Siegel,

536 F.3d 306

, 316 (4th Cir.2008). Accordingly, as to Maynard’s
testimony, Lester’s argument lacks merit.
Righter’s Testimony:
{¶44} Turning to Righter’s testimony, the record reveals that Righter
testified that she had known Lester since she was a teenager and reconnected with
him in the summer of 2017 because “[she] was getting high and a friend informed
[her] that [Lester] was selling dope.” (Oct. 30, 2018 Tr., Vol. I, at 127). When she
did not have money, she testified that she exchanged sexual favors for drugs. (Id.
at 128). Although Lester’s trial counsel objected to this line of questioning, he did
-28-
Case No. 14-18-21
so on the on the basis of relevance and not impermissible character evidence under
Evid.R. 404(B). (Id.). The trial court overruled his objection and instructed the
State to tie the dates up to the indictment. (Id.). Thereafter, Righter testified that
she had also purchased drugs from Lester during the relevant-indicted-time frames
in the basement of the Raymond residence utilizing the same forms of payment. (Id.
at 128-129). See Evid.R. 103(A)(1). “‘Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is affected,
and’ ‘[i]n case the ruling is one admitting evidence, a timely objection appears in
the record stating the specific ground of the objection, if the specific ground was not
apparent from the context.’” Stark v. Stark, 5th Dist. Delaware No. 01CAF6020,

2002 WL 109281

, *3 (Jan. 4, 2002), quoting Evid.R. 103(A)(1). Notwithstanding
the prescription of Evid.R. 103(A)(1) requiring a timely objection stating the
specific ground of the objection, even if we assume without deciding that an abuse-
of-discretion standard applies to the evidence Lester is challenging on appeal, the
result is still the same. See State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-
Ohio-7915, ¶ 10 (“We will assume without deciding that an abuse-of-discretion
standard of review applies as to Rebecca’s testimony, even though Wendel objected
to only one of the statements.”); Stark at *3 (“Although appellant did not
specifically state hearsay as the reason for the objection, the court did not abuse its
discretion in admitting the evidence.”).
-29-
Case No. 14-18-21
{¶45} Importantly, Lester was indicted for trafficking offenses which were
alleged to have occurred on August 17, 2017 (arguably “summer of 2017”) in
Counts One and Two relating to the Marysville-hotel case, and after Lester’s
objection, Righter’s testimony was confined to acts that occurred during the
relevant-indicted-time frames in the Raymond-residence case. (Case No. 2018-CR-
0061, Doc. No. 1); (Case No. 2018-CR-0012, Doc. No. 2); (Oct. 30, 2018 Tr., Vol.
I, at 12). Because we have determined that the Righter’s testimony relates to acts
intrinsic to the indicted offenses, we conclude Lester’s argument is without merit.
See Carter,

2017-Ohio-1233

, at ¶ 73; Hill,

2019-Ohio-3432

, at ¶ 51.
Manns’s Testimony:
{¶46} We now address Manns’s objected to testimony related to the facts of
the Marysville-hotel case. The testimony in question is as follows:
[State of Ohio]:          Miss Manns, how long had you been
purchasing from Jerod Lester?
[Lester’s Trial Counsel]: Your Honor, I’m going to object as to
relevancy.
[The Trial Court]:        Overruled.
[Lester’s Trial Counsel]: Miss Manns, the question pending was,
how -- how long had you been purchasing
from Jerod Lester?
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Case No. 14-18-21
[Manns]:                   I’m not sure.
[State of Ohio]:           Does it go back more than a year prior to --
[Manns]:                   No.
[State of Ohio]:           Let me finish my question. Does it go back
more than a year prior to August 17, 2017?
[Manns]:                   No.
[State of Ohio]:           Did you ever visit Mr. Lester at the address
of 21378 Raymond, Ohio -- I’m sorry,
21378 Titus Road, Raymond, Ohio to
purchase drugs?
[Manns]:                   Nope.
(Oct. 30, 2018 Tr., Vol. II, at 198). The State was attempting to elicit testimony that
Manns had previously purchased drugs from Lester at the Raymond residence
(present conduct at issue in the trial). See Carter at ¶ 73; Hill at ¶ 51. However,
Manns’s testimony revealed that she had not previously purchased drugs from
Lester at the Raymond residence. Even though the question posed to Manns by the
State may have involved unindicted-time frames, there is no material prejudice to
Lester, given, her response. See State v. Jones, 3d Dist. Logan No., 8-16-18, 2017-
Ohio-4351, ¶ 10, quoting State v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-
265,

2017-Ohio-2671

, at ¶ 24, citing Issa, 93 Ohio St.3d at 64. Thus, the trial court
-31-
Case No. 14-18-21
did not abuse its discretion by overruling the objection. Lester’s argument is
without merit.
Carver’s Testimony:
{¶47} Next, we turn to Carver’s testimony. Carver testified to selling drugs
for Lester before and during the course of the indicted-time frames at the Raymond
residence. (Oct. 31, 2018 Tr., Vol. II, at 176-178). Lester’s trial counsel objected
to this evidence pursuant to Evid.R. 404(B) and requested the trial court to strike
the testimony, and to instruct the jury to disregard it. (Id. at 177). The trial court
sustained Lester’s objection, but denied the request to strike, and instead gave the
jury a limiting instruction. (Id. at 177-178). Consequently, we limit our analysis to
those extrinsic acts (acts prior to indicted-time frames) within the purview of
Evid.R. 404(B). So, if we assume without deciding that Carver’s testimony meets
the first two steps of the Williams analysis, we still cannot conclude that Carver’s
testimony (that she sold drugs prior to the indicted-time frame for Lester) ‘is []
[unfairly] prejudicial “because the trial court instructed the jury that this evidence
could not be considered to show that [Lester] acted in conformity with a character
trait.”’” Jones,

2017-Ohio-4351

, at ¶ 13, quoting Wendel,

2016-Ohio-7915

, at ¶ 28,
quoting Williams,

134 Ohio St.3d 521

, at ¶ 24, (concluding “[t]he
trial court’s limiting instruction lessened any prejudicial effect of the evidence”).
(See Oct. 31, 2018 Tr., Vol. II, at 176-178). Thus, any prejudicial effect did not
-32-
Case No. 14-18-21
substantially outweigh the probative value of the evidence. See State v. Regan, 5th
Dist. Delaware No. 13 CAA 08 0067,

2014-Ohio-3797

, at ¶ 19. See also Wendel at
¶ 28, citing Williams at ¶ 24.
Evid.R. 404(B) Notice Requirement Analysis
{¶48} Next, we will address Lester’s argument concerning whether he was
provided reasonable notice in advance of trial of the State’s intention to introduce
“other-acts” evidence at trial under Evid.R. 404. “Evid.R. 404 was amended in 2012
to adopt a notice requirement.” State v. Nuzum, 6th Dist. Lucas No. L-15-1122,

2016-Ohio-2744

, ¶ 20. As a result of the amendment, “[t]he proponent of other-
acts evidence must provide ‘reasonable notice in advance of trial’ of the general
nature of any such evidence it intends to introduce at trial.” State v. Yoder, 5th Dist.
Licking No. 16-CA-54,

2017-Ohio-903

, ¶ 24, quoting Evid.R. 404(B). “‘[T]he
notice given to the defense regarding “other crimes” evidence must be sufficiently
clear so as “to permit pretrial resolution of the issue of its admissibility.”’”

quoting State v. Tran, 8th Dist. Cuyahoga No. 100057,

2014-Ohio-1829

, ¶ 23,
quoting United States v. Long,

814 F.Supp. 72

, 74 (D.Kan.1993). “Following its
amendment, the Ohio rule is now similar to the federal rule, which requires
reasonable notice of the general nature of any such evidence in order to prevent
unfair surprise.” Nuzum at ¶ 20, citing State v. Plevyak, 11th Dist. Trumbull No.
2013-T-0051,

2014-Ohio-2889

, ¶ 12, (citation omitted).           “‘Whether notice is
-33-
Case No. 14-18-21
“reasonable” will depend on the facts and circumstances of each case.’” Yoder at ¶
24, quoting Plevyak at ¶ 19, (citation omitted). Evid.R. 404(B)’s notice requirement
“should not be construed to exclude otherwise relevant and admissible evidence
solely because of a lack of notice, absent a showing of bad faith.” 2012 Staff Note,
Evid.R. 404.
{¶49} We note that, unlike other rules of evidence, the plain language of
Evid.R. 404(B) requires that the defendant receive “reasonable notice in advance of
trial”, not written notice of the general nature of “other acts” evidence the State
intends to introduce at trial. Evid.R. 404(B). Compare Evid.R. 609(B) (requiring
“sufficient advance written notice of intent to use” a conviction more than ten-years-
old to impeach a witness).
{¶50} Given the specific facts and circumstances of this case, the record
supports that Lester was given “reasonable notice in advance of trial” by the State
of its intention to use “other-acts” evidence at trial by virtue of its memorandums
filed on August 21, 2018. (Case No. 2018-CR-0012, Doc. No. 66); (Case No. 2018-
CR-0061, Doc. No. 45). See Jones,

2017-Ohio-4351

, at ¶ 16; Plevyak, 2014-Ohio-
2889, at ¶ 20, 22. See also State v. Heiney, 6th Dist. Lucas No. L-16-1042, 2018-
Ohio-3408, ¶ 66; In re. T.N., 3d Dist. Marion No. 9-15-36,

2016-Ohio-5774

, ¶ 73.
{¶51} Nevertheless, Lester’s trial counsel objected to the State’s “other-acts”
evidence on the first day of trial, after the jury had been selected, and before the
-34-
Case No. 14-18-21
parties gave their opening statements. (Oct. 29, 2018 Tr., Vol. I, at 98). Thus, we
conclude that Lester’s counsel had actual notice that the State’s evidence contained
“other-acts” evidence under Evid.R. 404(B) and R.C. 2945.59 prior to trial.
Consequently, we cannot say that Lester was unfairly surprised by the State’s use
of the “other-acts” evidence because he had notice of the State’s intent to use it.
{¶52} Accordingly, we cannot conclude that the trial court abused its
discretion by admitting the testimonies of Righter, Manns, and Carver or that the
testimonies of Maynard, Frye, Earles, Holton, and Wright amounted to plain error
under the facts presented in the record.
“Bad acts” of witnesses analysis
{¶53} Next, Lester argues that the State (in its case in chief) was not
permitted to offer evidence regarding a witness’ own criminal conduct (injecting
themselves and others with drugs) “as a testament to [Lester’s] bad character.”
(Appellant’s Brief at 11). See Evid.R. 404, 607, 611, 614. Indeed
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, subject to the following exceptions:
***
Evidence of the character of a witness on the issue of credibility is
admissible as provided in Rules 607, 608, and 609.
Evid.R. 404(A) and (A)(3). Compare Evid.R. 404(A)(1), (2), 405(B).
-35-
Case No. 14-18-21
{¶54} In our review of the record, we note that Lester objected to the
testimonies of Detective Nathan Stone (“Det. Stone”), Righter, and Carver on the
basis of relevancy. (Oct. 30, 2018 Tr., Vol. I, at 160). (Oct. 31, 2018 Tr., Vol. II,
170-172). (Nov. 1, 2018 Tr., Vol. II, at 290-299). However, Lester did not object
to the testimonies of Czarnecki or Holton. Therefore, we will only review Lester’s
arguments as to the testimonies of Det. Stone, Righter, and Carver under an abuse-
of-discretion standard. We will review the testimonies of Czarnecki and Holton
under plain error. Nevertheless, regardless of the standard or the rule we apply, for
the following reasons the outcome is the same.
{¶55} Lester argues that he was prejudiced by the State’s discreditation of its
own witnesses on direct examination with evidence of the witnesses “bad acts”. We
disagree. In our review of the record, we conclude that the State was not attempting
to impeach its own witnesses, but was rather having each witness testify to the
events portrayed in Lester’s surveillance video, from the Raymond residence, which
was offered as evidence by the State. See Evid.R. 104(A), (B); 901(A), (B)(1). The
testimonies of Det. Stone, Righter, Carver, Czarnecki, and Holton laid a foundation
for and assisted with the authentication of State’s Exhibit 65 (a portable-hard drive),
and it created a timeline for the events depicted therein. We conclude that Righter,
Carver, Czarnecki, and Holton were not testifying to inadmissible-character
evidence under Evid.R. 404(A)(3) as Lester argues, but were only identifying their
-36-
Case No. 14-18-21
activities depicted in the surveillance video.5 Det. Stone, on the other hand, was
testifying to his knowledge as it pertains to the contents of the video related to his
investigation. See Evid.R. 602, 901(B)(1). State v. Koch, 2d Dist. Montgomery No.
28041,

2019-Ohio-4182

, ¶ 51, citing State v. Groce, 10th Dist. Franklin No. 18-AP-
51,

2019-Ohio-1007

, ¶ 46, (holding that a witness who experienced the incident
depicted in the video and a detective who reviewed the video as part of his
investigation were both permitted to testify regarding the contents of the
surveillance video under Evid.R. 602). State v. Myers,

154 Ohio St.3d 405

, 2018-
Ohio-1903, ¶ 116, citing Evid.R. 901(B)(1) (stating “testimony of a witness with
knowledge is valid authentication”).
{¶56} Moreover, each witnesses’ testimony was a narrative of the events
depicted in the surveillance video and provided context for the jury as to these
events. Koch at ¶ 53, citing State v. Walker, 10th Dist. Franklin No. 17-AP-588,

2019-Ohio-1458

, ¶ 64 and State v. Coots, 2d Dist. Miami No. 2014 CA 1, 2015-
Ohio-126, ¶ 24, (reasoning that “to the extent that testimony regarding the events
shown on the surveillance video provided context or additional information that
could be helpful to the jury, was permitted to comment on the video).
5
Testimony does not violate Evid.R. 404 if it does not pertain to a character evidence. State v. Murray, 7th
Dist. Mahoning No. 18-MA-0031,

2019-Ohio-5459

, ¶ 21, citing 404(A) and Sibert v. City of Columbus, 10th
Dist. Franklin No. 91AP-522,

1992 WL 41253

, *8 (Feb. 27, 1992). “Black’s Law Dictionary defines
character evidence as ‘evidence regarding someone’s general personality traits or propensities, of a
praiseworthy or blameworthy nature; evidence of a person’s moral standing in a community.’”

Id.,

 citing
Black’s Law Dictionary (11th Ed. 2019).
-37-
Case No. 14-18-21
{¶57} Accordingly, we cannot conclude that the trial court abused its
discretion by admitting the testimonies of Det. Stone, Righter, and Carver.
Moreover, we cannot conclude that there is any error that rises to level of plain error
as to the testimonies of Czarnecki and Holton which caused a manifest miscarriage
of justice under the facts before us.
{¶58} Lester’s second and third assignments of error are overruled.
Assignment of Error No. V
Defense counsel’s failure to renew his motion as to the improper
joinder of the two indictments and failure to stipulate to
defendant’s prior conviction in a timely fashion or bifurcate the
count, rendered counsel’s performance deficient to the point of
being ineffective.
{¶59} In his fifth assignment of error, Lester argues that his trial counsel was
deficient in his performance by failing to renew his motion against joinder (of the
two indictments), by failing to stipulate to Lester’s prior conviction timely, and by
failing to seek to bifurcate Count Seven. For the reasons that follow, we disagree.
Standard of Review
{¶60} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole,

92 Ohio St.3d 303

, 306 (2001), citing Strickland v. Washington,

466 U.S. 668

,
687,

104 S.Ct. 2052

 (1984). In order to show trial counsel’s conduct was deficient
-38-
Case No. 14-18-21
or unreasonable, the defendant must overcome the presumption that counsel
provided competent representation and must show that counsel’s actions were not
trial strategies prompted by reasonable professional judgment. Strickland at 687.
“[T]rial Counsel is entitled to a strong presumption that all decisions fall within the
wide range of reasonable professional assistance.” State v. Sallie,

81 Ohio St.3d 673

, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance. State v. Carter,

72 Ohio St.3d 545

, 558
(1995). Rather, the errors complained of must amount to a substantial violation of
counsel’s essential duties to his client. See State v. Bradley,

42 Ohio St.3d 136

, 141-
142 (1989), quoting State v. Lytle,

48 Ohio St.2d 391

, 396 (1976), vacated in part
on other grounds, Lytle v. Ohio,

438 U.S. 910

98 S.Ct. 3135

 (1978).
{¶61} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04,

2014-Ohio-259

, ¶ 48, quoting
Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’”

quoting Bradley at 142
and citing Strickland at 694.
Analysis
{¶62} Lester’s ineffective-assistance-of-counsel claim centers on his trial
counsel’s failure to renew his motion against joinder of the two indictments and by
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Case No. 14-18-21
failing to timely stipulate to Lester’s prior conviction or, alternatively, to bifurcate
Count Seven.
Joinder of Indictments
{¶63} As to his ineffective assistance of counsel argument, Lester first argues
that his trial counsel was ineffective because trial counsel failed to renew his motion
against joinder. The record reflects that Lester’s counsel filed a pretrial motion
seeking to have the Raymond-residence indictment tried separately from the
Marysville-hotel indictment, which the State opposed. (Case No. 2018-CR-0012,
Doc. Nos. 36, 66); (Case No. 2018-CR-0061, Doc. Nos. 26, 45). The trial court
denied Lester’s motion, and Lester’s counsel failed to renew the request during trial.
(Case No. 2018-CR-0012, Doc. No. 101); (Case No. 2018-CR-0061, Doc. No. 61).
Lester argues that his counsel’s failure to renew the motion resulted in the waiver
of all but plain error below.
{¶64} Even if we assume, without deciding, that Lester satisfied the first
prong of Strickland, Lester cannot satisfy the second prong. As discussed in
Lester’s first assignment of error, the stated evidence against him in each indictment
was simple, distinct, direct, and uncomplicated.
The law favors the joinder * * * and the avoidance of multiple trials
because joinder conserves judicial and prosecutorial time, lessens the
expenses of multiple trials, diminishes the inconvenience to
witnesses, and minimizes the possibility of incongruous results from
successive trials before different juries.
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Case No. 14-18-21
State v. Luckie, 5th Dist. Richland No.

2018-Ohio-594

, ¶ 30, citing State v. Thomas,

61 Ohio St.2d 223

, 225 (1980). Importantly, and dispositive to this argument,
Lester cannot demonstrate prejudice as a result of his trial counsel’s failure to
renew his motion against joinder of the indictments in light of the trial court’s
instruction (to the jury) to consider each count in the indictments, separately. (Nov.
2, 2018 Tr. at 95-96). Accordingly, Lester is unable to satisfy the second prong of
Strickland.
Stipulation to prior conviction
{¶65} We now address Lester’s argument that his trial counsel should have
stipulated to Lester’s prior conviction as to Count Seven in the Raymond-residence
case more timely. “It is a well-established principle that decisions regarding [these]
stipulations are matters of trial strategy and tactics.” State v. Roy, 10th Dist.
Franklin No. 14AP-986,

2015-Ohio-4959

, ¶ 22, citing State v. Rippy, 10th Dist.
Franklin No. 08AP-248,

2008-Ohio-6680

, ¶ 16, citing State v. Edwards,

119 Ohio App.3d 106

, 110 (10th Dist.1997), citing United States v. Teague,

953 F.2d 1525

,
1531 (11th Cir.1992). We recognize that “a[n] [appellate] court must indulge a
strong presumption that [trial] counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland at 689, quoting Michel v. Louisiana,
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Case No. 14-18-21

350 U.S. 91

, 101,

76 S.Ct. 158

, 163 (1955). To be successful in his ineffective-
assistance-of-counsel claim, Lester must overcome this presumption.
{¶66} In our review of the record, we cannot say that the timing of trial
counsel’s stipulation was deficient or unreasonable under the circumstances
presented because Lester’s trial counsel stipulated to the admission of State’s
Exhibit 109 (Lester’s prior convictions from Madison County Common Pleas
Court) immediately after the State attempted to identify the exhibit by case caption.
(Nov. 1, 2018 Tr., Vol. I, at 16-18). After stipulating, the trial court instructed the
jury not to consider Lester’s prior conviction as a “prior bad act”. (Id. at 18).
Accordingly, in our view, Lester has failed to satisfy the first prong of Strickland in
this argument.
{¶67} Next, Lester argues that his trial counsel’s failure to bifurcate Count
Seven contributed to his trial counsel’s ineffectiveness. We disagree. Here, Lester’s
argument is predicated on a determination that his trial counsel committed
cumulative error (which is contrary to the conclusion that we reached based on our
review of the record). We conclude, under the facts presented, this argument is
without merit. See State v. Sanders, 2d Dist. Montgomery No. 26666, 2016-Ohio-
4724, ¶ 36 (concluding that State v. Jenkins 8th Dist. Cuyahoga No. 91100, 2009-
Ohio-235, ¶ 17 was distinguishable from Sanders on the basis that trial counsel in
Jenkins failed to file a motion to suppress which was reversible error and thereafter
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Case No. 14-18-21
concluded that while his trial counsel’s failure to file a motion for discovery and
failure to seek bifurcation “alone would [not] constitute ineffective assistance of
trial counsel, together they add to the cumulative nature of counsel’s errors.”). See
also State v. Thompson, 8th Dist. Cuyahoga No. 96929,

2012-Ohio-921

, ¶ 39,
(determining that trial counsel was not ineffective for failing to request a motion to
bifurcate Thompson’s weapons-under-a-disability charge and distinguishing
Jenkins based on the cumulative nature of trial counsel’s errors.)
{¶68} Accordingly, Lester has failed to demonstrate that the actions of trial
counsel were not part of a trial strategy and that the outcome of the trial would have
been different. Accordingly, Lester’s fifth assignment of error is overruled.
Assignment of Error No. IV
The state engaged in prosecutorial misconduct throughout the
course of the trial that deprived the defendant of his right to a fair
trial.
{¶69} In his fourth assignment of error, Lester asserts that during trial and
during closing arguments that the prosecutor engaged in prosecutorial misconduct
denying him a fair trial.
Standard of Review
{¶70} “The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial
rights.” State v. Liles, 3d Dist. Allen No. 1-14-61,

2015-Ohio-3093

, ¶ 31, citing
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Case No. 14-18-21
State v. Smith,

14 Ohio St.3d 13

, 14 (1984), (citation omitted). “‘To establish
prejudice, a defendant must show that a reasonable probability exists that, but for
the prosecutor’s improper remarks, the result of the proceeding would have been
different. Thus, “[n]ot every intemperate remark by counsel can be a basis for
reversal.”’”

Id.,

 quoting State v. Porter, 4th Dist. Meigs No. 10CA15, 2012-Ohio-
1526, ¶ 20, quoting Landrum, 53 Ohio St.3d at 112. “In making this determination,
an appellate court should consider several factors: (1) the nature of the remarks, (2)
whether an objection was made by counsel, (3) whether corrective instructions were
given by the court, and (4) the strength of the evidence against the defendant.” State
v. Braxton,

102 Ohio App.3d 28

, 41 (8th Dist.1995), (citations omitted).
Analysis
{¶71} In his argument, Lester asserts that the State improperly impeached its
own witnesses through impermissible-character attacks. However, since we have
determined in Lester’s third assignment of error that the testimonies of the witnesses
were not impermissible-character attacks, but rather narrations of States Exhibit 65
offered to lay a foundation, assist with authentication, create a timeline, and provide
context for the exhibit for the jury, we reject this argument.
{¶72} We now turn to Lester’s argument that Heather Carpenter
(“Carpenter”) was harassed and threatened by the State which inflamed the jury and
resulted in misconduct. Importantly, Lester objected to the admission of
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Case No. 14-18-21
Carpenter’s testimony on the basis of relevancy and argued that the presence of
Carpenter’s son in the surveillance video (State’s Exhibit 65) would inflame the
jury. (Oct. 31, 2018 Tr., Vol. II, at 236-237). Nevertheless, the trial court overruled
the objection and permitted Carpenter’s testimony as to Counts One, Two, and Eight
of the Raymond-residence case. Thereafter, the State questioned Carpenter
attempting to get her to admit that she purchased drugs from Lester or sold drugs
for Lester when she was absent from the room where she left her son. (Id. at 234-
243); (See State’s Ex. 65). When testifying, Carpenter was uncooperative and
evasive, and subsequently attempted to assert her Fifth-Amendment privilege which
resulted in Lester’s trial counsel’s objecting for a second time followed by a request
for the trial court to appoint Carpenter counsel after asserting her Fifth Amendment
privilege. (Oct. 31, 2018 Tr., Vol. II, at 243, 245-247). Thereafter, the trial court
instructed the jury under Crim.R. 5(A)(2) and (3) as to the inferences to be drawn
from Carpenter’s refusal to testify and Carpenter was immediately excused with no
further examination by the State or Lester. (Id. at 247-251). Compare State v.
Arnold,

147 Ohio St.3d 138

2016-Ohio-1595

, ¶ 39, citing State v. Dinsio,

176 Ohio St. 460

, 468 (1964), (concluding “the key in Dinsio was the fact that the prosecutor,
after the witness claimed the privilege, used the witness’s prior statement to ask him
a series of questions in what amounted to an effort to force the witness to repeatedly
assert his right in the presence of a jury and to allow the jury to hear ‘innuendo
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Case No. 14-18-21
evidence or inferences of evidence’ that the state could not get from the witness
directly.”).
{¶73} Under the presented facts, it is not prosecutorial misconduct for the
State to call a witness, who may claim a Fifth-Amendment privilege, by asking that
witness questions. Dinsio at 466, citing Commonwealth v. Granito,

326 Mass. 494

,
499,

95 N.E.2d 539

 (Mass. 1950), (“The possibility that a witness may claim the
privilege does not prohibit the prosecutor from asking questions.”). Moreover,
Lester cannot establish prejudice here because the trial court gave the jury a curative
instruction which was sufficient to relieve any prejudice Lester may have suffered.
State v. LaMar,

95 Ohio St.3d 181

2002-Ohio-2128

, ¶ 170, citing State v. Loza,

71 Ohio St.3d 61

, 75 (1994), overruled on other grounds, (“The trial court’s curative
instruction was sufficient to relieve any prejudice.”). Consequently, Lester has
failed to establish the second prong of the prosecutorial-misconduct test.
{¶74} Next, Lester asserts that the State committed misconduct when it
vouched and bolstered the credibility of witnesses and by making improper
comments (regarding Lester’s guilt) during closing argument.               Addressing
prosecutorial misconduct allegations related to closing arguments, “[p]arties have
wide latitude in their closing statements, particularly ‘latitude as to what the
evidence has shown and what inferences can be drawn from the evidence.’” State
v. Wolff, 7th Dist. Mahoning No. 07 MA 166,

2009-Ohio-7085

, at ¶ 13, quoting
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Case No. 14-18-21
State v. Diar,

120 Ohio St.3d 460

2008-Ohio-6266

, at ¶ 213. State v. Leonard,

104 Ohio St.3d 54

2004-Ohio-6235

, ¶ 159, (“A prosecutor may state an opinion if based
on evidence presented at trial.”). “‘The test regarding prosecutorial misconduct in
closing arguments is whether the remarks were improper and, if so, whether they
prejudicially affected substantial rights of the defendant.” State v. Rasawehr, 3d
Dist. Mercer No. 10-19-15,

2020-Ohio-429

, ¶ 13, quoting State v. Encarnacion,
10th Dist. Franklin No. 16AP-817,

2017-Ohio-5530

, ¶ 10, citing State v. Smith, 14
Ohio St.3d at 14. “‘A prosecutor’s isolated comments are not to be taken out of
context and given their most damaging meaning.’” Id., quoting Encarnacion at ¶
10, citing State v. Noling,

98 Ohio St.3d 44

2002-Ohio-7044

, ¶ 94, citing Donnelly
v. DeChristoforo,

416 U.S. 637

, 647,

94 S.Ct. 1868

 (1974). “‘Instead, an appellate
court must review a closing argument in its entirety to determine whether prejudicial
error occurred.’”

 quoting Encarnacion at ¶ 10, citing Noling at ¶ 94, citing State
v. Frazier,

73 Ohio St.3d 323

, 342 (1995).
{¶75} Initially, we note that Lester did not object to any of the prosecutor’s
statements made during closing argument, and therefore we apply plain error. State
v. Davis, 3d Dist. Seneca No. 13-16-30,

2017-Ohio-2916

, ¶ 30, citing State v. Potts,
3d Dist. Hancock No. 5-16-03,

2016-Ohio-5555

, ¶ 85, citing State v. Smith, 3d Dist.
Hardin No. 6-14-14,

, ¶ 63 and Crim.R. 52(B), (“If defense counsel
did not object at trial to the allegedly prejudicial remarks, then all but plain error is
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Case No. 14-18-21
waived.”).   “‘A court recognizes plain error with the utmost caution, under
exceptional circumstances, and only to prevent a miscarriage of justice.’”

quoting State v. Stevens, 3d Dist. Allen No. 1-14-58,

2016-Ohio-446

, ¶ 55, quoting
Smith,

, at ¶ 63. An appellate court “‘may reverse only when the
record is clear that defendant would not have been convicted in the absence of the
improper conduct.’”

 quoting Smith,