State v. Clayton

[Cite as State v. Clayton, 2017-Ohio-8538.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
CASE NO. CA2017-01-009
Plaintiff-Appellee, :
OPINION
: 11/13/2017
- vs -
:
GREGORY CLAYTON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 14CR29857
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Thomas G. Eagle, 3400 North State Route 741, Lebanon, Ohio 45036, for defendant-
appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Gregory Clayton, appeals his conviction in the Warren
County Court of Common Pleas for possession of marijuana.
{¶ 2} Around 1:30 a.m. on February 11, 2014, Warren County Sheriff's Deputy
Andrew Grossenbaugh was parked in his police cruiser along Interstate 71 and observed a
Chrysler Pacifica traveling southbound at 64 m.p.h. in a 70 m.p.h. zone. The Pacifica's
Warren CA2017-01-009
speed was unremarkable to the deputy. However, after passing the deputy's police cruiser,
the Pacifica slowed to 53 m.p.h., which the deputy found to be suspicious. Deputy
Grossenbaugh began following the Pacifica. After he observed it make several marked lane
and lane change violations, he initiated a traffic stop.
{¶ 3} Upon approaching the vehicle, the deputy found appellant in the driver's seat
and Jason Raphael in the front passenger seat, speaking on a cell phone. According to
Deputy Grossenbaugh, the cell phone conversation alerted him to the possibility of drug
activity because it is common for drug couriers to call and alert their contact when they are
stopped by police. The deputy observed eight large, block-shaped packages, tightly taped
and wrapped with moving blankets, upon the folded-down back seats of the Pacifica. The
deputy thought the packages were suspicious because drug couriers often wrap drugs with
moving blankets and the packages were similar in size and shape to bales of marijuana. The
Pacifica was also traveling along Interstate 71, which is a known drug corridor.
{¶ 4} During Deputy Grossenbaugh's initial contact with appellant and Raphael, both
men were extremely nervous, shaking excessively, and avoiding eye contact. The deputy
obtained identification from appellant but Raphael was unable to produce identification or his
social security number. Instead, Raphael provided the deputy with his Horseshoe Casino
player's card, a name, and a date of birth. The deputy also observed five cell phones and an
air freshener in the vehicle.
{¶ 5} Sergeant (then Deputy) Randy Asencio arrived at the scene and the officers
separately interviewed appellant and Raphael. The Pacifica was registered to an 84-year-old
woman from Cincinnati, Ohio, who appellant claimed was his aunt. Appellant provided
conflicting explanations as to where he was going but ultimately stated he was moving
"furniture or antiques" of his recently deceased aunt. Appellant stated he was moving the
furniture from Columbus to Cincinnati. Deputy Grossenbaugh did not believe the bundles
-2-
Warren CA2017-01-009
were furniture or antiques because they were all similar in shape and size and he believed
the tight wrapping of the packages would damage the antiques. There was confusion during
the officers' interviews with appellant and Raphael regarding whether the men were
transporting the packages from Columbus or Cincinnati. In addition, the two men provided
inconsistent stories as to how long they had known each other.
{¶ 6} A canine unit arrived at the scene. Appellant and Raphael were each placed in
the back of the officers' separate police cruisers. Before being placed in the cruisers, the
men consented to a search of their persons and rolling papers were found on Raphael.
Although the canine unit did not alert to the presence of drugs, both officers believed the
wrapped packages in the back of the Pacifica were bales of marijuana and the canine unit's
failure to alert did not lessen their suspicions. Consequently, Deputy Grossenbaugh
contacted Detective Dan Schweitzer of the Warren County Drug Task Force for assistance to
obtain a search warrant. Detective Schweitzer arrived at the scene and after viewing the
packages, he too believed they were bales of marijuana. Appellant declined a request for
consent to search the Pacifica and the officers decided to obtain a search warrant for the
vehicle.
{¶ 7} Thereafter, appellant and Raphael were separately transported to the Warren
County Sheriff's Office. The Pacifica was taken to the Drug Task Force headquarters where
Detective Schweitzer drafted the affidavit for a search warrant. At approximately 6:00 a.m.,
the warrant was signed by a judge and the search warrant was executed. The bundles in the
back of the vehicle were found to be bales of marijuana.
{¶ 8} On March 17, 2014, appellant and Raphael were each indicted for trafficking in
marijuana, in violation of R.C. 2925.03(A)(2), and possession of marijuana, in violation of
R.C. 2925.11(A), both second-degree felonies since the marijuana equaled or exceeded
40,000 grams. Appellant was also indicted for permitting drug abuse, in violation of R.C.
-3-
Warren CA2017-01-009
2925.13(A), a fifth-degree felony.
{¶ 9} Appellant and Raphael moved to suppress the evidence found from the search
of the vehicle and their persons along with the statements both made to the police. Following
an evidentiary hearing, the trial court suppressed the evidence seized as a result of the
search of the Pacifica and evidence obtained from appellant. The trial court reasoned that
while the initial traffic stop and detention was lawful, once the canine failed to alert to the
presence of drugs, further detention of appellant and the Pacifica was illegal. The trial court,
however, denied the motion to suppress the evidence obtained from Raphael's person or the
statements he made to the police.
{¶ 10} The state appealed the suppression of the marijuana found in the Pacifica. On
August 10, 2015, we reversed the trial court's decision, finding that considering the
information known to the officers prior to the time the canine unit responded to the scene, the
officers had probable cause to search the Pacifica pursuant to the automobile exception, and
therefore, the continued detention of the vehicle to obtain a search warrant did not violate the
Fourth Amendment to the United States Constitution. State v. Raphael, 12th Dist. Warren
Nos. CA2014-11-138 and CA2014-11-139, 2015-Ohio-3179, ¶ 31. We remanded the matter
to the trial court for further proceedings.
{¶ 11} Appellant sought a discretionary appeal to the Ohio Supreme Court. Initially,
the supreme court accepted jurisdiction to review the Fourth Amendment issue pursuant to
the recent decision of the United States Supreme Court in Rodriguez v. United States, __
U.S. __135 S.Ct. 1609 (2015). However, the Ohio Supreme Court later dismissed the appeal
for failure to prosecute when appellant's then appellate counsel failed to file a merit brief.
State v. Raphael, 145 Ohio St.3d 1431, 2016-Ohio-1328. The supreme court subsequently
denied appellant's motion for reconsideration and his pro se motion for relief and pro se
application for reopening the appeal. State v. Raphael, 145 Ohio St.3d 1473, 2016-Ohio-
-4-
Warren CA2017-01-009
3028; and State v. Raphael, 147 Ohio St.3d 1457, 2016-Ohio-8121.
{¶ 12} The matter was then returned to the trial court for further proceedings. On
remand, appellant and Raphael were tried jointly in a bench trial. Neither testified at trial.
Deputy Grossenbaugh, Sergeant Asencio, Detective Schweitzer, and Franklin Police Officer
Steven Dunham testified on behalf of the state.1 The trial court heard closing arguments
from the parties and took the matter under advisement. On January 13, 2017, the trial court
found appellant guilty of marijuana possession and permitting drug abuse, but not guilty of
trafficking in marijuana, and sentenced him to a mandatory eight years in prison.
{¶ 13} Appellant now appeals, raising two assignments of error.
{¶ 14} Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT WITHOUT
REOPENING THE MOTION TO SUPPRESS.
{¶ 16} Appellant argues that given the ineffective assistance of his then appellate
counsel in failing to prosecute the discretionary appeal to the supreme court, the only remedy
available to appellant should have been to reopen the motion to suppress and reconsider the
Fourth Amendment issue under Rodriguez. Therefore, appellant asserts, the trial court erred
in convicting him of marijuana possession and permitting drug abuse without first reopening
the motion to suppress.
{¶ 17} Rodriguez was decided on April 21, 2015, several months before we reversed
the trial court's grant of appellant's motion to suppress. Appellant's arguments regarding the
Fourth Amendment issue could have been raised in a motion for reconsideration of this
court's opinion immediately after our opinion was released on August 10, 2015, but were not.
1. At trial, Officer Dunham testified that while he was now a police officer for the Franklin Police Department, he
was working as a detective for the Warren County Drug Task Force in February 2014. Officer Dunham
interviewed Raphael at the Warren County Sheriff's Office on February 11, 2014.
-5-
Warren CA2017-01-009
{¶ 18} Following the supreme court's dismissal of appellant's discretionary appeal and
denial of his subsequent motions for reconsideration, relief, and reopening the appeal, the
matter was returned to the trial court. Under the "law of the case" doctrine, the decision of a
reviewing court in a case remains the law of that case on legal questions involved for all
subsequent proceedings at both trial and reviewing levels. State v. Davis, 2d Dist. Clark No.
2005-CA-43, 2006-Ohio-1592, ¶ 24. The rule is necessary to avoid endless litigation by
settling the issues and to preserve the structure of superior and inferior courts as designated
by the Ohio Constitution. State v. Keller, 2d Dist. Montgomery No. 18411, 2001 Ohio App.
LEXIS 2468, *13 (June 1, 2001).
{¶ 19} Appellant was unable to persuade the supreme court to reconsider its dismissal
of the discretionary appeal. Even though appellant asserted ineffective assistance of his
then appellate counsel as grounds for his subsequent motions, appellant was further unable
to persuade the supreme court to grant him relief and reopen the appeal in order to review
the Fourth Amendment issue under Rodriguez. In other words, appellant was unable to
persuade the supreme court to accept our August 10, 2015 opinion for review and to reverse
it. The supreme court's denial of appellant's motions leaves intact our ruling that the motion
to suppress was improperly granted, which is the law of the case. Once the matter was back
before the trial court, appellant never moved to reopen the motion to suppress. There is no
obligation for a trial court to sua sponte reopen a motion to suppress. The trial court,
therefore, did not err in convicting appellant without first reopening the motion to suppress.
{¶ 20} Appellant's first assignment of error is overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} THE TRIAL COURT ERRED IN TRYING THE DEFENDANTS TOGETHER
AND ADMITTING HEARSAY FROM ONE CO-DEFENDANT AGAINST THE OTHER.
{¶ 23} Appellant argues the trial court erred in admitting Raphael's inculpatory hearsay
-6-
Warren CA2017-01-009
statements to the police into evidence. As stated above, neither appellant nor Raphael
testified at their joint trial. However, their statements to the police were admitted without
objection during the testimony of the various law enforcement officers. Appellant asserts that
the trial court's admission of Raphael's statements prejudiced him and violated his Sixth
Amendment right to confront witnesses against him pursuant to Bruton v. United States, 391
U.S. 123, 88 S.Ct. 1620 (1968), and its progeny.
{¶ 24} Appellant's failure to object waives all but plain error. See State v. Slagle, 65
Ohio St.3d 597 (1992). Plain error does not exist unless the error is obvious and but for the
error, the outcome of the case would have been different. State v. Alhashimi, 12th Dist.
Warren Nos. CA2016-07-065 and CA2017-07-066, 2017-Ohio-7658, ¶ 44. Notice of plain
error is taken with the utmost caution and only under exceptional circumstances to prevent a
manifest miscarriage of justice. Id.{¶ 25} The Confrontation Clause prohibits the admission or use of testimonial
statements of a witness who does not appear at trial unless that witness is unavailable to
testify, and the defendant has had a prior opportunity for cross-examination. Crawford v.
Washington, 541 U.S. 36, 68, 124 S. Ct. 1354 (2004). However, the Sixth Amendment right
to confrontation may only be invoked under situations where hearsay is offered into evidence.
Id. at 60, fn. 9 (the Confrontation Clause does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted). Thus, the statements
must be hearsay to trigger the Bruton rule. State v. Brown, 11th Dist. Lake No. 2012-L-007,
2013-Ohio-1099, ¶ 50; State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶
30.
{¶ 26} In Bruton, the United States Supreme Court held that in a joint jury trial of two
defendants, a defendant's Sixth Amendment right to confrontation is violated when the
confession of a non-testifying co-defendant is admitted at their joint trial, even when the trial
-7-
Warren CA2017-01-009
court carefully instructed the jury that the confession could only be admitted against that co-
defendant. Bruton, 391 U.S. at 126, 137. The rationale of Bruton was that a co-defendant's
confession that incriminates a defendant is so "inevitably suspect" and "devastating" that the
ordinarily sound assumption that a jury will be able to faithfully follow its instructions could not
be applied. Id. at 136. Hence, the Supreme Court held it could not accept limiting jury
instructions as an adequate substitute for a defendant's constitutional right of cross-
examination in the context of a joint jury trial where a co-defendant does not testify and thus
cannot be tested by cross-examination. Id. at 137.
{¶ 27} The Ohio Supreme Court expanded the Bruton rule to exclude not only
confessions to the police but also a co-defendant's statements to a prosecution witness.
State v. Moritz, 63 Ohio St.2d 150, 154 (1980). The supreme court further applied the Bruton
rule "with equal force to all statements that tend significantly to incriminate a co-defendant,
whether or not he is actually named in the statement. * * * Just as one can be convicted on
circumstantial evidence, one can be circumstantially accused." Id. at 155. Nevertheless, the
supreme court held that a mere finding of a violation of the Bruton rule during a trial does not
automatically require a reversal of the defendant's conviction if properly admitted evidence of
guilt is overwhelming, and the prejudicial effect of the admission of the co-defendant's
statement is so insignificant by comparison, that it is clear beyond a reasonable doubt that
the improper use of the co-defendant's statement was harmless error. Id. at 156.
{¶ 28} Subsequently, the United States Supreme Court took a different posture when it
addressed whether the admission of a co-defendant's redacted confession at a joint jury trial
violated the Confrontation Clause. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702(1987); In re Watson, 47 Ohio St.3d 86, 91 (1989). In Richardson, the co-defendant's
confession was redacted to omit any reference to the defendant and any reference that
anyone other than the co-defendant and another individual were involved in the crimes. The
-8-
Warren CA2017-01-009
co-defendant's confession was not incriminating on its face, and became so only when linked
with evidence introduced later at trial through the defendant's own testimony.
{¶ 29} The Supreme Court held that "the Confrontation Clause is not violated by the
admission of a nontestifying codefendant's confession with a proper limiting instruction when,
as here, the confession is redacted to eliminate not only the defendant's name, but any
reference to his or her existence." Richardson at 211. Nevertheless, the Supreme Court
remanded the case because "the prosecutor sought to undo the effect of the limiting
instruction by urging the jury to use [the co-defendant's] confession in evaluating [the
defendant's] case." Id.{¶ 30} After Richardson, the Ohio Supreme Court revisited the issue in the context of a
juvenile delinquency case in Watson, 47 Ohio St.3d 86. Unlike Bruton, Morritz, and
Richardson, Watson involved a joint bench trial. The supreme court held that
The Confrontation Clauses of Section 10, Article I of the Ohio
Constitution and the Sixth Amendment to the United States
Constitution are not violated by the admission of a nontestifying
co-defendant's confession, where the confession is redacted to
eliminate not only the defendant's name, but also any reference
to his or her existence. (Richardson v. Marsh [1987], 481 U.S.
200, approved and followed.)
Watson at paragraph two of the syllabus.
{¶ 31} The supreme court further held that Watson differed from Bruton in two
important respects:
First, because the co-defendants' confessions were redacted
there was little risk of applying one co-defendant's confession
against the others. Also, this case was tried before the trial
judge; therefore, the risk that the jury would not follow the court's
instructions was not present. Furthermore, we have noted that
the trial court can be presumed to apply the law correctly, and
there is no reason to believe otherwise in this case. Therefore,
we conclude that the trial court did not err in overruling
appellants' motions for separate trials and in receiving into
evidence the confession of each co-defendant.
-9-
Warren CA2017-01-009
(Citations omitted.) Id. at 91.
{¶ 32} Trial testimony shows that in response to the various law enforcement officers'
questions, appellant told them that he and Raphael had grown up together, Raphael lived in
New York but had returned to Cincinnati several months ago, and the two of them drove to
Columbus where they spent a couple of hours before returning to Cincinnati. Appellant
further told the officers he was moving his late aunt's furniture and antiques to Cincinnati.
When asked by Detective Schweitzer what kind of antiques they were, appellant did not
respond. When asked twice by Deputy Grossenbaugh whether there were drugs in the
Pacifica, appellant first denied there were any drugs in the vehicle, then later replied, "nothing
that he knew of."
{¶ 33} Trial testimony further shows that in response to the officers' questions,
Raphael told them he was from New York, and that he and appellant had met through some
mutual friends a few months ago. Raphael further told the officers that appellant picked him
up in Cincinnati and that they drove to Columbus where they either "hung out" at a friend's
house or visited some of appellant's relatives for a few hours. Raphael told the officers that
upon leaving Columbus, he could not sleep in the back of the Pacifica as the vehicle was full
and that appellant told him the packages were his late aunt's furniture which he was taking to
Atlanta. Raphael consistently denied that anything in the vehicle was his and denied he
knew anything about the marijuana. When Officer Dunham told him there were about 425
pounds of marijuana in the back of the Pacifica, Raphael replied he had not handled any
marijuana.
{¶ 34} Appellant asserts that his right of confrontation was violated when the trial court
admitted Raphael's hearsay statements which "directly implicat[ed] [appellant], compared to
the generalities attributed from [appellant]," by describing appellant's "contact with the loaded
contraband to support [appellant's] knowledge of what it was."
- 10 -
Warren CA2017-01-009
{¶ 35} We note at the outset that appellant does not specifically identify Raphael's
alleged inculpatory hearsay statements, and instead merely directs us to two pages of the
trial transcript which pertain to Officer Dunham's testimony.2 Nor does appellant specifically
state how Raphael's statements directly incriminated him. As we have stated before, it is not
this court's duty to "root out" or develop an argument that can support an assigned error,
even if one exists. See Lebanon v. Ballinger, 12th Dist. Warren No. CA2014-08-107, 2015-
Ohio-3522.
{¶ 36} "Hearsay" is a statement, other than one made by the declarant while testifying
at trial or a hearing, offered into evidence to prove the truth of the matter asserted. Evid.R.
801(C). We are not persuaded that Raphael's statements to the police are hearsay, that is,
that they were offered to prove the truth of the facts asserted by Raphael. To the contrary,
the state offered Raphael's statements because they were not true and to inferentially
suggest that appellant and Raphael were attempting to conceal criminal activity. Thus,
Raphael's statements were offered not to prove the truth of what Raphael was asserting, but
simply to establish what was said. Accordingly, his statements were non-hearsay and do not
implicate Bruton and its progeny. See Cassano, 2012-Ohio-4047.
{¶ 37} Even assuming Raphael's statements were hearsay, we find that they do not
come within the ambit of Bruton and its progeny. Raphael's statements were not facially
incriminating and did not "tend significantly to incriminate" appellant under Bruton and Moritz
as both men told the officers the same general story about appellant moving his late aunt's
furniture, and both denied knowing about the marijuana in the back of the Pacifica. See In re
C.M., 8th Dist. Cuyahoga No. 99599, 2013-Ohio-5426 (no violation of right of confrontation
2. On those two pages, Officer Dunham testified that in response to his questions, Raphael told him he and
appellant drove to Columbus where they stayed "one to one and a half hours," when they got back into the
Pacifica in Columbus, Raphael could not get into the backseat because the back seat was full, and appellant told
him it was furniture he was taking from Columbus to Atlanta.
- 11 -
Warren CA2017-01-009
where the co-defendant's statements did not inculpate the defendant and were similar to the
defendant's statement to the police). In addition, Raphael never told the police that appellant
loaded the Pacifica himself. In fact, there is no evidence as to who loaded the vehicle.
{¶ 38} Richardson instructs us that even when the nontestifying co-defendant's
statement is only inferentially incriminating, a limiting jury instruction will not cure a
Confrontation Clause violation when there is some indication that the statement was relied
upon in establishing the defendant's guilt. Even if Raphael's statements are inferentially
incriminating pursuant to Richardson and Watson, by implying that it was appellant who
loaded the vehicle, we find no plain error. This was a joint bench trial where the opportunity
for prejudice to the defendants is severely limited and where the necessity of a limiting
instruction is obviated. See State v. Merriweather, 8th Dist. Cuyahoga No. 58089, 1991 Ohio
App. LEXIS 1294 (Mar. 28, 1991). It is well-established that in a bench trial, a trial court is
presumed to act properly in consideration of the evidence. State v. Eubank, 60 Ohio St.2d
183, 187 (1979). That is, a trial court is presumed to consider only the relevant, material, and
competent evidence in arriving at a judgment, unless the contrary affirmatively appears from
the record. Id.; State v. Proffitt, 12th Dist. Butler Nos. CA2016-07-134 and CA2016-07-135,
2017-Ohio-1236, ¶ 34, fn. 5. There is no indication that the trial court improperly considered
Raphael's statements in convicting appellant of marijuana possession and permitting drug
abuse. In fact, before the trial court rendered its verdict on January 13, 2017, the court
specifically told the parties that in considering the evidence that was admitted in the case, it
looked at each of their cases individually.
{¶ 39} We therefore find the trial court did not err in receiving into evidence Raphael's
statements to the police, and the trial court's admission of Raphael's statements did not
violate appellant's Sixth Amendment right to confront witnesses against him pursuant to
Bruton and its progeny.
- 12 -
Warren CA2017-01-009
{¶ 40} Appellant's second assignment of error is overruled.
{¶ 41} Judgment affirmed.
S. POWELL, P.J., concurs.
PIPER, J., concurs separately.
PIPER, J., concurring separately.
{¶ 42} I concur with the judgment as expressed above, as well as the analysis, but
have additional thoughts as to the second assignment of error.
{¶ 43} The statements of appellant and Raphael did not implicate either person in
criminal activity. However, when law enforcement officers noted the inconsistencies in
comparing their respective statements, suspicions were raised. In conducting initial traffic
stops, inconsistent statements by the occupants can raise or escalate an officer's suspicions.
State v. Brooks, 3d Dist. Hancock No. 5-11-11, 2012-Ohio-5235, ¶ 28. Depending on what
other factors are present, inconsistent statements can be associated with criminal activity. Id.
at ¶ 38. Therefore, I conclude that the statements were not admitted to prove the truth of the
matter asserted, but rather to explain why the officers had suspicions and continued their
investigation in the manner in which they did.
{¶ 44} There was no objection at trial because the statements were only offered to
explain the officers' conduct. Furthermore, there was a thread of consistency between the
statements of appellant and Raphael. Arguably, some of Raphael's statements aided
appellant by bolstering appellant's statements. This leads to my second point, which is
appellant invited and induced any alleged error.
{¶ 45} Appellant waived time for his trial so that a bench trial could take place jointly
with Raphael. It is evident appellant effectuated a joint trial. Furthermore, there was no
- 13 -
Warren CA2017-01-009
objection to Raphael's statements coming into evidence at the trial. Parties cannot take
advantage of an error they invited or induced. State v. Sowell, 148 Ohio St.3d 554, 2016-
Ohio-8025. Even if the hearsay statements were considered as substantive evidence and
admitted in error, such error is waived if invited or induced by the defendant. Even plain error
is waived or forfeited when the error is invited or induced by the defendant. Berry v. Paint
Valley Supply, L.L.C., 4th Dist. Highland No. 16CA19, 2017-Ohio-4254, citing State v.
Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286.
{¶ 46} Here, appellant knew of Raphael's statements yet appellant took affirmative
steps toward securing a joint trial. Additionally, appellant did not object to the statements
coming into evidence because, to some degree, Raphael's statements corroborated
appellant's statements. Appellant's trial strategy cannot now be used to his advantage on
appeal.
{¶ 47} Appellant cannot make a strategical decision at trial regarding its underlying
Bruton claim then complain on appeal that the result of that decision constitutes reversible
error. State v. Jennings, 10th Dist. Franklin Nos. 09AP-70 and 09AP-75, 2009-Ohio-6840, ¶
76, citing United States v. Jernigan, 341 F.3d 1273 (11th Cir.2003). Granted, appellant's trial
strategy would have been more evident had the trial court or prosecutor sought a waiver from
trial counsel of any potential Bruton issues. Nevertheless, the record clearly reflects a
strategical decision to use both appellant's statements and Raphael's statements in an effort
to advance appellant's claim of innocence without actually testifying and being subject to the
prosecutor's cross-examination.
{¶ 48} In conclusion, I agree with the majority's analysis that the statements admitted
did not implicate a Bruton violation and that no plain error occurred. Additionally, I find that
even if a Bruton violation occurred, it was an error invited or induced by appellant and
- 14 -
Warren CA2017-01-009
therefore forfeited upon appeal.3
3. Just as a Bruton violation can be harless error, so too can it be invited. See State v. Edwards, 11th Dist. Lake
No. 2012-L-034, 2013-Ohio-1290, ¶ 39.
- 15 -