STATE OF OHIO v. DAVID BARRON
CASE NO. CA2020-12-088
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
1/18/2022
[Cite as State v. Barron, 2022-Ohio-102.]
BYRNE, J.
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR36769
William F. Oswall Jr., for appellant.
BYRNE, J.
{1} David Barron appeals from his convictions in the Warren County Court of Common Pleas for various prostitution-related offenses. For the reasons discussed below, we affirm.
I. Procedural and Factual Summary
A. Indictment
{2} In June 2020, a Warren County grand jury returned a 29-count indictment
B. Evidence Presented at Trial
1. Amy‘s Testimony
{3} Amy testified that she had known Barron for “a while,” through a mutual friend. They reconnected in January or February of 2020. In March 2020, Barron invited her to his hotel room at the Super 8 in Mason, Ohio. Initially, she just went over to “chill, kick it, talk.” There, she met Rose for the first time. She understood that Rose was Barron‘s girlfriend, but that she also prostituted for him.
{4} Amy testified that on a few occasions, she accompanied Rose when Rose would go on “licks,” that is, when Rose would meet “johns” for sex. “Johns” are people who were paying for sex. Amy would not participate and would “just sit there with her” to make sure Rose was “all right.”
{5} Eventually, Barron forced Amy to start going on licks at the Super 8. Amy
{6} Barron had rules that he forced Amy and Rose to follow. The moment that they came in the door, they had to get completely undressed. They were not allowed to talk to one another. Depending on his mood, they were not allowed to talk to him. She and Rose could not have password pins on their phones, and he was permitted to access their phones. He required them to have sex with him “all the time.” He would have them perform oral sex on him and would set a timer. There were “consequences” if they stopped performing oral sex before the timer was up.
{7} Rose was addicted to heroin and methamphetamine. Barron supplied her with narcotics. Amy was not addicted to drugs at the time she first went to the Super 8. She had been clean for two years and was not a methamphetamine user beforehand. But Barron forced Amy to start smoking methamphetamine and she became addicted.
{8} Amy and Rose gave the money from the johns to Barron immediately. They were only allowed to hold the money for “like three seconds.” Barron then used the money to buy drugs, food, and drink. Amy and Rose were not allowed to keep any of the money and Barron never paid them for their services as prostitutes. As Amy relayed that Barron had explained it to her, “I put a roof over your head and food in your stomach and that‘s good enough.”
{9} At the time she became involved in prostitution at the Super 8, Amy had been living in Fairfield with her boyfriend (whom she called her husband) and seven children. When she would cry enough, Barron would let her leave to go see her family. However, he would keep her personal property to make sure “I had a reason to come back.” Amy stated
{10} In addition to the Super 8, Amy testified that she and Rose prostituted for Barron at two other hotels.3 As Amy recalled, they were at the Super 8 from approximately March 13 to the beginning of April 2020. Then they were at the Red Roof Inn in Hamilton County for two weeks. Then they were at the Baymont Inn in Mason.4 Sometimes Barron rented multiple rooms. He would rent the room under “whoever‘s ID he had.”
{11} It was the “same system” throughout all three hotels. Barron would create an advertisement on a website for escorts. He took photographs of Amy and Rose, or took “selfies” from their respective phones. He would include the photographs on the advertisement. Barron would text with the johns who responded to the advertisements. Barron would tell Amy and Rose that messages were coming in from the johns and that they needed to “get ready.”
{12} Amy recalled an incident that occurred at the Red Roof Inn. Rose was “dope sick” from heroin withdrawal. Barron was “taking his time going to get [heroin] for her.” Rose locked herself in the bathroom, which angered Barron. When Rose came out, he began beating her. When she tried to leave the room, he smacked her, knocking her unconscious.
{13} Amy recalled another time when Barron got mad at her for giving her phone number to one of Barron‘s friends. Later, when they were smoking methamphetamine, he took the “hot glass bubble” and touched it to her skin, burning her five different times. The state produced photographs of injuries corroborating the abuse. The state further introduced a text message conversation between Amy and Barron that took place on April
2. Officer John Werner‘s Testimony
{14} Mason Police Officer John Werner testified that on May 1, 2020, he responded to the Mason Super 8 because a clerk reported finding narcotics in a hotel room. Upon searching the room, he located methamphetamine. In a drawer, he found Amy‘s wallet, containing her identification card. He also found two rings in the drawer. He found an identification card for Barron as well as the identification card of a person named “Andre Henderson,” which was a name that police discovered that Barron used to rent some of the hotel rooms.
{15} Officer Werner testified that he received a call from another officer for assistance. He responded to the area between the Baymont Inn and Super 8, where he found the other officer with Rose. She was very upset and said that she was trying to get back to her hotel room at the Super 8, the same room Officer Werner had just searched. She said she was “being victimized and pimped out of the hotels.”
{16} Based on what Rose told him, Officer Werner advised other officers to be on the lookout for a red/burgundy Chevrolet Impala. This was Amy‘s father‘s car, which, according to Amy, Barron used for himself almost every day.
3. Officer Scott Burdick‘s Testimony
{17} Mason Police Officer Scott Burdick testified that the next day, he observed the red vehicle in question in the parking lot of the Baymont Inn. He confirmed the license plate and saw that Barron was inside the vehicle. He backed out of the parking lot and went
{18} Officer Burdick followed the vehicle and eventually stopped it for a turn signal violation. Police removed Barron from the vehicle, who acknowledged he had a suspended driver‘s license. Officers detected a strong odor or marijuana emanating from the vehicle and upon searching the vehicle, Officer Burdick found individually wrapped baggies of marijuana. Barron admitted that the marijuana was his and specifically stated that it was not Amy‘s marijuana. He said that she was a “good girl” and did not have anything to do with the marijuana and was not “involved in anything.” According to Officer Burdick, Barron seemed very concerned about the police speaking to Amy and was very interested in what she had to say.
4. Detective Jeff Wyss‘s Testimony
{19} Police transported Barron and Amy to the Mason Police Department, where Mason Police Detective Jeff Wyss interviewed them separately. Detective Wyss testified that Amy was “visibly distraught” during the interview. She denied that she worked for Barron as a prostitute, although she admitted that he had asked her to do so. During Amy‘s interview, Detective Wyss recalled that Barron was “shouting at the officers to get me,” for Detective Wyss to “hurry” and come ask him about drugs.
{20} Several days later, Detective Wyss interviewed Amy again. According to Amy, she “broke down” and told Detective Wyss what Barron was forcing her to do. On May 6, 2020, Barron called Amy from the Warren County Jail. In a recorded call presented at trial, Barron told Amy, “they got me facing five years over what you said.” He implored her, “Just don‘t come to court. Just don‘t come to no court dates.”
{21} Detective Wyss found evidence on Barron‘s cell phone that he had visited a
{22} Detective Wyss obtained a search warrant and downloaded the content of Barron‘s cell phone. Detective Wyss downloaded text messages, photographs, and videos from the phone. Much of that content was made into exhibits and entered into evidence at trial. In text conversations, Barron referred to his “line of work” as “pussy sell.” He referred to himself as a “pimp” and many of his messages appeared related to the operation of a prostitution business. Photographs taken from Barron‘s phone matched the photographs that were posted on the escort website featuring Rose.
{23} The state subpoenaed Rose to testify at trial but she did not appear.
C. Crim.R. 29 Motion and Sentencing
{24} At the conclusion of the state‘s case, Barron moved for acquittal under Crim.R. 29. The trial court granted Barron‘s motion with respect to the counts of the indictment where Rose was the victim, except for the count of felonious assault.
{25} Barron did not present a defense case. The jury found Barron guilty of trafficking in persons and promoting prostitution, all with respect to Amy, as well as the felonious assault count with respect to Rose.6
{26} The trial court sentenced Barron to prison. The court imposed separate prison terms for each count of trafficking in persons and promoting prostitution but ran those
II. Law and Analysis
{27} Assignment of Error No. 1:
{28} THE FELONIOUS ASSAULT CHARGE RELATING TO [ROSE] MUST BE REVERSED BECAUSE VENUE WAS NOT PROPERLY ESTABLISHED.
{29} Barron argues that the felonious assault count against Rose was premised on a criminal act that took place at the Red Roof Inn in Hamilton County and the state failed to establish that venue was appropriate in Warren County.
A. Law Applicable to Venue
{30} “Venue is not a material element of the offense, yet it is a fact that must be proved beyond a reasonable doubt, unless it is waived by the defendant.” State v. Birt, 12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 27; State v. Headley, 6 Ohio St.3d 475, 477 (1983). Venue lies in any jurisdiction in which the offense or any element of the offense was committed.
{31}
- The offenses involved the same victim, or victims of the same type or from the same group.
- The offenses were committed by the offender in the offender‘s same employment, or capacity, or relationship to
another. - The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective.
* * *
B. Whether Venue Was Proper in Warren County
{32} Barron argues that the only “course of criminal conduct” evidence presented by the state at trial was that the offenses involved the same victim or victims. He points out that, except for the felonious assault of Rose that occurred in Hamilton County, he was acquitted of every count of the indictment that involved Rose. Thus, he argues that Rose was not the “same victim” for any other offense of which he was convicted, and so the Warren County Court of Common Pleas lacked venue with respect to Barron‘s assault of Rose.
{33} A careful review of the record reveals that the facts and circumstances in evidence were sufficient to demonstrate that venue properly lay in both Warren County and Hamilton County.
{34} First,
{35} Second, even if Barron were correct that Rose and Amy may not qualify as “victims of the same type or from the same group,” the state still presented prima facie evidence demonstrating that venue is appropriate in Warren County because the evidence showed that Barron‘s assault of Rose took place as part of “the offender‘s same employment, or capacity, or relationship to another” as described in
{36} Amy‘s testimony, along with the voluminous documentary evidence, demonstrated that Barron, over the course of two months, operated a prostitution business at two hotels in Warren County and one hotel in Hamilton County. As part of the operation of the business, he rented rooms at the hotels. He posted advertisements online seeking to recruit johns. According to Amy, he directed her and Rose to have sex with the johns and collected the money obtained from the johns. Amy testified that Barron provided food, drink, and narcotics to her and Rose. Amy testified that he maintained control over Rose and her in both Hamilton and Warren Counties by plying them with narcotics and by using force and intimidation. Finally, according to Amy, it was the “same system” at each of the three hotels.
{37} The evidence established that the felonious assault of Rose occurred at the Red Roof Inn during the ongoing course of the prostitution business operated by Barron in Warren County and Hamilton County. The evidence showed that Barron committed the offenses of which he was convicted in his same employment or capacity, i.e., his work as a “pimp.”
{38} Accordingly, venue on the felonious assault charge was proper in both Warren County and Hamilton County and it was not improper for the state to pursue charges against Barron in Warren County.
{39} Assignment of Error No. 2:
{40} BECAUSE THE OFFENSE OF PROMOTING PROSTITUTION IS MORE SPECIFIC THAN THE GENERAL OFFENSE OF TRAFFICKING IN PERSONS, WHICH IS A GENERAL OFFENSE, UNDER R.C 1.51, THE SPECIFIC OFFENSE OF PROMOTING PROSTITUTION MUST PREVAIL AND THE CONVICTIONS FOR TRAFFICKING IN PERSONS MUST BE REVERSED.
{41} Barron argues that the offense of promoting prostitution (
A. Standard of Review
{42} Barron failed to argue in the proceedings before the trial court that he should have been charged with promoting prostitution rather than trafficking in persons. Barron has therefore waived all error except plain error. State v. Evick, 12th Dist. Clermont No. CA2018-03-016, 2019-Ohio-2791, ¶ 24. To constitute plain error there must be a deviation from a legal rule. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Second, the error must be fundamental, palpable, and obvious on the record such that it should have been apparent to the court without an objection. State v. Barnette, 12th Dist Butler No. CA2012-05-099, 2013-Ohio-990, ¶ 30. Third, the error must have affected Barron‘s substantial rights, that is, the error must have affected the outcome of the trial. Barnes at 27. An appellate court will take notice of plain error with “utmost caution, under exceptional circumstances and
B. Analysis
{43} The trafficking in persons statute provides:
A prosecution for a violation of this section does not preclude a prosecution of a violation of any other section of the Revised Code. One or more acts, a series of acts, or a course of behavior that can be prosecuted under this section or any other section of the Revised Code may be prosecuted under this section, the other section of the Revised Code, or both sections. * * *.
(Emphasis added.)
{44} Barron argues that State v. Volpe, 38 Ohio St.3d 191 (1988), prevents him from being convicted of trafficking in persons if he was convicted of the more specific offense of promoting prostitution. In Volpe, the Ohio Supreme Court held that, where “there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence.” Volpe at syllabus. In Volpe the state charged the defendants with “gambling,” in violation of
{45} Former
{46} In this case, Barron argues that trafficking in persons is the more general offense and promoting prostitution the more specific offense, which should have taken precedence under
{47}
No person shall knowingly recruit, lure, entice, isolate, harbor, transport, provide, obtain, or maintain * * * another person if * * * the following applies:
The offender knows that the other person will be * * * compelled to engage in sexual activity for hire * * *.
{48} The statute further clarifies that “[f]or a prosecution under division (A)(1) of this section, the element ‘compelled’ does not require that the compulsion be openly displayed or physically exerted. The element ‘compelled’ has been established if the state
{49}
No person shall knowingly:
* * *
Supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire * * *.
{50} The offense of trafficking in persons is focused on the actions of a defendant that cause a victim to be “compelled“—through force, fear, duress, intimidation, or fraud—to enter into and then remain in prostitution. For example, in State v. Warren, 8th Dist. Cuyahoga No. 102181, 2015-Ohio-3671, the defendant—charged and convicted of trafficking in persons—exercised “pimp control” over his victims. Id. at ¶ 7. He instilled fear through beating another girl in front of the victims, taking money and social security benefits from a victim, confiscating the victims’ birth certificates, and by mentally and emotionally abusing the victims to the point of complete submission to his control. Id. at ¶ 38-40.
{51} In State v. Brown, 8th Dist. Cuyahoga No. 106582, 2019-Ohio-1235, the Eighth District Court of Appeals found that trafficking in persons involved affirmative actions that “persuade, attract, or enable another” to engage in prostitution, or where a defendant aids “in the act of prostitution, profits from another‘s prostitution, and exercises some dominion or control over the individual.” Id. at ¶ 47. There, the victim initially stated she voluntarily engaged in prostitution. Id. at ¶ 51. The defendant allowed her to keep half of the money she earned, and the court found this was an enticement that led her to believe that she would be able to provide for herself and her son. However, the defendant subsequently began to keep all the money the victim earned and began maintaining and providing support for the victim and her son. Over the course of several weeks, the victim
{52} The offense of promoting prostitution, on the other hand, is focused on the regular activities of supervision, management, and control that relate to operating a prostitution business. The Second District Court of Appeals has determined that a defendant‘s conviction for promoting prostitution was supported by sufficient evidence where the evidence indicated that the defendant created “Backpage” advertisements soliciting johns, posted photographs of the prostitute, and the defendant‘s phone number was listed as the contact number in the advertisements. State v. Satterfield, 2d Dist. Montgomery No. 27180, 2017-Ohio-5616, ¶ 25. When an individual called the phone number, the defendant answered and arranged the “date,” which involved negotiating the price, location, duration, and time that the date was to occur. The defendant arranged transportation to and from the date for the prostitute. The defendant rode with the prostitute to the date and waited in the vehicle while the date was occurring. Finally, evidence indicated the defendant expected to receive a share of the profits after the date was completed. Id.
{53} In this case, there is a distinction between the evidence supporting Barron‘s convictions for trafficking in persons and promoting prostitution. With regard to trafficking in persons, Amy‘s testimony established that Barron maintained her prostitution activities using force, fear, duress, and intimidation. Amy testified that Barron “told her to do it,” meaning have sex with johns, and that she was aware that if she did not, there would be “consequences.” She knew about “consequences” because she had seen Rose suffer “consequences” before she herself began to engage in prostitution for Barron at the Super 8. The consequences included physical assault. Amy also testified that Barron threatened to post photographs of her online, which she did not want because of her children. Barron
{54} On the other hand, the evidence supporting the offense of promoting prostitution included the numerous exhibits admitted at trial demonstrating how Barron used digital tools (the internet, and text messages) to manage his prostitution business. The evidence indicated that he created online advertisements for sexual services. He took photographs of the women or used their “selfies,” which he would forward to his phone. He listed his phone number on advertisements. Barron determined the price for the sexual services and listed the price on the online advertisement as (for example) “qv60hhr100.” He rented hotel rooms at the various hotels where Amy and Rose would meet johns for sex. He communicated with the johns, informing them where to meet, and negotiated on the sexual services that would be performed and the price. He instructed Amy on what to say to johns when she was alone with them. He instructed Amy on the rules of dealing with johns, writing in one text message: “Rule number 1 in this game. Never get in a john car thats pulling off.” [Sic.] He monitored the time that the johns spent with Amy and Rose and would determine when the john‘s time was up.
{55} Based on the foregoing, we conclude that
{56} Assignment of Error No. 3:
{57} DEFENDANT MUST BE RE-SENTENCED DUE TO THE FAILURE OF THE TRIAL COURT TO MERGE ALLIED OFFENSES.
{58} Barron argues that the trafficking in persons offenses were allied offenses of similar import with the promoting prostitution offenses because “the same conduct which was involved in the supervision and controlling and managing of [Amy] was the same conduct that involved the trafficking allegations.” Barron additionally argues that each of the trafficking in persons counts should have merged because the only difference between the counts were that they occurred in different hotels. Finally, Barron argues that all the promoting prostitution counts should merge because they were all based on a continuous course of conduct with one animus and one victim.
A. Standard of Review
{59} Barron did not request merger at sentencing, or otherwise object to the court‘s decision to impose sentence on each count of trafficking in persons and promoting prostitution. Accordingly, Barron must demonstrate plain error. Evick, 2019-Ohio-2791 at ¶ 24.
B. Analysis
{60} The trafficking in persons statute relevantly provides:
A prosecution for a violation of this section does not preclude a prosecution of a violation of any other section of the Revised Code. One or more acts, a series of acts, or a course of behavior that can be prosecuted under this section or any other section of the Revised Code may be prosecuted under this section, the other section of the Revised Code, or both sections. However, if an offender is convicted of or pleads guilty to a violation of this
section and also is convicted of or pleads guilty to a violation of section 2907.21 of the Revised Code based on the same conduct involving the same victim that was the basis of the violation of this section, or is convicted of or pleads guilty to any other violation of Chapter 2907. of the Revised Code based on the same conduct involving the same victim that was the basis of the violation of this section, the two offenses are allied offenses of similar import under section 2941.25 of the Revised Code.
(Emphasis added.)
{61} Thus, because Barron was also convicted of promoting prostitution in violation of Chapter 2907 of the Revised Code, the question becomes whether Barron‘s convictions for trafficking in persons and promoting prostitution were based on the same conduct involving the same victim. Additionally, under the allied offense analysis utilized by the Ohio Supreme Court and our court, a defendant may be convicted and sentenced for multiple offenses if: ““(1) the offenses are dissimilar in import or significance – in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.“” State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-4103, ¶ 14, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25. ““An affirmative answer to any of the above will permit separate convictions.“” State v. Robinson, 12th Dist. Butler No. CA2014-12-256, 2015-Ohio-4649, ¶ 40, quoting Ruff at ¶ 31.
{62} For the reasons articulated in response to Barron‘s second assignment of error, we find that Barron‘s convictions for trafficking in persons and promoting prostitution counts were not based on the same conduct and were dissimilar in import and significance. As discussed above, the evidence supporting the trafficking in persons counts related to Barron‘s actions in maintaining Amy in prostitution through compulsory acts of force, threats, and fear. The promoting prostitution counts were established through other evidence that exemplified the management of a prostitution enterprise, including creating
{63} With regard to the three trafficking in persons counts, we do not find that Barron has established plain error in the court‘s failure to merge those counts. We find that each of those offenses caused separate, identifiable harm and were committed separately. Count 1 involved trafficking in persons that occurred between March 10, 2020 through April 9, 2020. The evidence at trial indicated that Barron‘s trafficking activities during this time occurred primarily at the Super 8. Count 3 involved trafficking in persons that occurred between April 9, 2020 through April 23, 2020, and which the evidence at trial indicated occurred at the Red Roof Inn. Finally, Count 5 involved trafficking occurring between April 23, 2020 through May 2, 2020 and involved trafficking that occurred largely at the Baymont Inn and may also have included some trafficking activities occurring at the nearby Super 8.
{64} That these offenses occurred at distinct locations and times is sufficient to show that they were committed separately. Barron did not limit his trafficking activities to merely one hotel, but spread those activities, and the resulting harms, to three separate hotels. The separate locations where Barron committed his trafficking offenses are significant and sufficient to demonstrate that the offenses were dissimilar in import or significance. See State v. Gomez, 10th Dist. Franklin No. 16AP-560, 2017-Ohio-8832, ¶ 25 (finding no plain error in the trial court‘s failure to merge five trafficking counts involving different quantities of the same type of drug recovered on the same day at five different locations); State v. Hymes, 7th Dist. Mahoning No. 19 MA 0130, 2021-Ohio-3439, ¶ 105
{65} The same reasoning set forth above would also establish that the sentencing court was not required to merge the promoting prostitution counts. Like the trafficking in persons counts, each count of promoting prostitution involved distinct time periods corresponding to prostitution activities occurring at distinct locations. Each count was committed separately and caused distinct and identifiable harm at all three locations.
{66} Finally, we note that Barron must demonstrate an error which is “fundamental, palpable, and obvious” on the face of the record such that it should have been obvious to the sentencing court that the offense should have merged. Barnette, 2013-Ohio-990 at ¶ 30. Based on the analysis set forth above, it is not “fundamental, obvious, or palpable” that the challenged offenses should have merged. We overrule Barron‘s third assignment of error.
{67} Assignment of Error No. 4:
{68} BARRON‘S CONVICTIONS AND SENTENCE MUST BE REVERSED BECAUSE HE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.
{69} Barron argues that he received constitutionally defective assistance of counsel where his attorney failed to strike a potentially biased juror during jury selection. He further argues that his counsel was deficient for failing to object to the court‘s sentence based on an allied offense argument, as set forth in the preceding assignment of error.
A. Standard of Review
B. Failure to Strike Allegedly Biased Juror
{71} Barron contends that trial counsel provided ineffective assistance by failing to strike a juror who expressed concerns about being a fair and impartial juror.
{72} A touchstone of a fair trial is an impartial trier of fact, that is, a jury capable and willing to decide the case solely on the evidence before it. State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, ¶ 30, citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845 (1984). Jury selection is the primary means by which a court may enforce a defendant‘s right to be tried by a jury free from any negative predisposition about the defendant. Id., citing Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237 (1989). A trial court must engage in an adequate voir dire in order to remove prospective jurors who will not be able to impartially follow the court‘s instructions and evaluate the evidence. Id., citing Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629 (1981).
{74} During voir dire, the court asked the juror in question whether there was anything he would like to share with the court or attorneys as far as whether he could decide the case fairly and impartially. The following exchange then occurred:
The juror: Judge, I was excited about being on a jury for the very first time; however, I look at let‘s say our community in a respect that we don‘t have enough police officers on the street. I don‘t think that the State is going to bring a case that they must have been investigating for months unless it was a really strong case. So I come in with an implicit bias that the defendant is probably 90 percent guilty. That‘s a bias that I have, I just wanted to be honest.
The court: Okay. It‘s not that unusual. It‘s why we have this part of the trial. And if you were on trial in another part of the country, for example, other than where you grew up, what would you expect from a juror? Would you expect that your mindset would be that of a fair juror?
The juror: Of course. However, I‘m 63 years old and I‘ve lived my life by trying to avoid things that would get me into trouble and engage police contact. Therefore, I can‘t ever envision myself being in that situation.
The court: Okay. But I‘m trying to make sure that you would be
– if you were on trial for something, if you have been accused of something and let‘s just remember we‘re talking about a person who‘s presumed innocent. By law he‘s presumed innocent. Would you trust yourself on that jury? The juror: Yes.
The court: Okay. Any other reason you couldn‘t serve? You remember when I was asking at the beginning if there‘s anything going on at home, sick parent, anything like that?
The juror: No, sir.
{75} Later in the voir dire, defense counsel had several direct exchanges with the juror:
Defense counsel: * * * Every one of you who is chosen is going to be the judge of the facts. Do you understand that? * * * [indicating the juror], how about you?
The juror: That‘s the way I would view the question. I‘m going to examine the evidence – examine the evidence and based on the judge‘s instructions determine guilt or innocence. I will be responsible for determining the credibility of any of the witnesses that are presented.
* * *
Defense counsel: Alternatively, in the event that none of you are convinced, can you also agree that if you‘re not convinced that you won‘t sign a guilty verdict? [indicating the juror] –
The juror: Yes, sir.
Defense counsel: If you‘re not firmly convinced of the truth of the charge, can you say nope, I‘m going to find not guilty?
The juror: Yes, sir.
* * *
Defense counsel: [Asks jurors questions about whether they watch shows like Better Call Saul and whether they believe that all defense attorneys are “shady.“]
The juror: I don‘t watch those shows, but I‘m going to weigh the evidence and take the judge‘s instructions and discuss it with the jury.
* * *
Defense counsel: All right. Is there anybody who absolutely has to hear Mr. Barron testify in order for them to make a decision on this case? [indicating the juror].
The juror: No, sir.
{76} In addition, defense counsel interviewed the jurors at length in a group questioning format. All jurors agreed that they would remain fair and impartial and follow the court‘s instructions. All jurors agreed that Barron was entitled to the presumption of innocence and that it was the state‘s job to prove him guilty beyond a reasonable doubt.
{77} The juror in question honestly revealed a bias that was, as noted by the trial court, not unusual. However, the juror repeatedly assured the court and the parties of his ability to remain impartial, to follow the court‘s instructions, and to fairly decide the case. The juror‘s responses also indicate that he understood his role as a juror, the presumption of innocence, and the state‘s burden of proof. Thus, through additional questioning both individually and in group session, it appears that the juror was successfully rehabilitated. See Wallace, 2019-Ohio-442 at ¶ 58-61 (holding that counsel was not ineffective for failing to challenge jurors for cause after certain allegedly biased jurors were rehabilitated through additional questioning by the court).
{78} Additionally, one of the juror‘s other responses indicated a potential strategic reason defense counsel may have wanted the juror to remain. Specifically, the juror‘s comment in response to a question about the “#MeToo movement” revealed a level of skepticism about the movement and questioned whether an accuser might have something to gain by going public. Thus, Barron‘s trial counsel‘s decision to keep the juror could have been within the ambit of trial strategy. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 225, 227 (observing that few decisions at trial are as prone to individual attorney
{79} Barron cites a recent Ohio Supreme Court case for the proposition that the failure to strike a juror who admitted bias constitutes ineffective assistance of counsel. Bates, 2020-Ohio-634. That case, however, is readily distinguishable. The defendant in that case was black, and a Caucasian juror revealed a blatant racial bias against black people in her jury questionnaire. Id. at ¶ 27. Neither the court nor the parties ever questioned the juror concerning her admitted racial bias, but she was nonetheless empaneled. Id. at ¶ 29. The court held that defense counsel‘s failure to question the juror about her questionnaire was objectively unreasonable attorney performance under Strickland and the juror‘s statements demonstrated actual bias and thus prejudice. Id. at ¶ 32, 37. In the case before us, however, the juror was extensively questioned about his potential bias, and through this questioning the juror was rehabilitated. Consequently, we do not find that Barron has demonstrated that his counsel provided deficient performance for failing to strike the juror, nor does the record indicate that the juror harbored actual bias against Barron.
C. Failure to Object/Argue for Merger
{80} Baron next argues that if this court overrules the allied offense arguments set forth in the preceding assignment of error, then his counsel performed deficiently for failing to argue merger in the proceedings below. For the reasons discussed in the previous assignment of error, we find no error, plain or otherwise, in the failure to merge the offenses, as they were not allied offenses of similar import. Therefore, trial counsel was not ineffective in failing to raise this issue.
{81} For the foregoing reasons, we overrule Barron‘s fourth assignment of error.
{82} Assignment of Error No. 5:
{83} BARRON‘S SENTENCE WAS UNCONSTITUTIONAL.
{84} Barron next argues that his sentence under the Reagan Tokes Act was unconstitutional because it violates the separation-of-powers doctrine. Barron concedes that this court has already addressed this specific argument and rejected it, finding the Reagan Tokes Act to be constitutional. State v. Suder, 12th Dist. Clermont Nos. CA2020-06-034 and CA2020-06-035, 2021-Ohio-465, ¶ 24-25. However, Barron explains that he assigns error to preserve the record in the event of a contrary decision by the Ohio Supreme Court.
{85} The record shows that Barron never raised this issue with the trial court. It is well established that the question of the constitutionality of a statute must be raised at the first opportunity, and, in a criminal prosecution, this means in the trial court. State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, ¶ 7. Consequently, by not first raising the issue with the trial court, Barron‘s arguments challenging the constitutionality of
{86} Assignment of Error No. 6:
{87} THE FELONIOUS ASSAULT CONVICTION AGAINST [ROSE] WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{88} Barron argues that the state presented legally insufficient evidence to allow a reasonable factfinder to convict him of felonious assault because of a lack of evidence that
{89} The jury found Barron guilty of felonious assault, a violation of
{90} Amy testified that on one occasion, Rose woke up “dope sick” and locked herself in a bathroom, angering Barron. When she emerged from the bathroom, Barron began hitting her “everywhere.” He threw an iron at her and dumped a gallon of milk on her. She started to cry and he told her to stop. She then tried to leave the room and he then “smacked her and knocked her out.” Amy confirmed that Rose was “out” after the blow.
{91} We find that these facts constitute sufficient evidence of serious physical harm under
{92} Barron also argues that the evidence was insufficient to establish that he “knowingly” caused Rose serious physical harm because the evidence indicated that he struck her with an open-handed slap. “A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature.”
{93} Barron posits that he could not have expected a slap to cause Rose serious physical harm. This argument is meritless. Amy testified that upon rendering Rose unconscious, Barron stated, “that‘s how you make a bitch shut up.” Thus, the evidence, if believed, would support the conclusion that Barron struck Rose with sufficient force so that she would stop crying. The evidence was sufficient to show that Barron was aware that his conduct would cause Rose serious physical harm. We overrule Barron‘s sixth assignment of error.
{94} Assignment of Error No. 7:
{95} BARRON‘S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{96} In his final assignment of error, Barron argues that all his convictions were against the manifest weight of the evidence because Amy was not a credible witness. A manifest weight of the evidence challenge examines the “inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other.” State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider
{97} In reviewing the evidence, an appellate court must be mindful that the original trier of fact was in the best position to judge the credibility of witnesses and determine the weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the manifest weight of the evidence only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-Ohio-466, ¶ 15.
{98} Barron argues that Amy lacked credibility because she had multiple warrants for her arrest at the time of her trial testimony, which warrants had been “suspended” by the Warren County prosecutor‘s office so that she could testify. Barron further argues that her explanation for how she became entangled and eventually under Barron‘s control made no sense. Barron further points out that at the time Amy was engaging in prostitution for Barron, she was able to leave Barron and visit her family.
{99} We do not find that Barron‘s convictions were against the manifest weight of the evidence in light of Amy‘s credibility. All the issues with Amy‘s credibility that Barron cites were laid in front of the jury. With respect to the warrants, Amy explained that the warrants were only suspended temporarily and that she still had to face charges on those warrants.
{100} Amy was thoroughly cross-examined on all the remaining arguments Barron makes, including how and why she became involved in prostitution with Barron. The jury was free to assign whatever weight it determined appropriate in assessing the truthfulness
{101} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.
BYRNE, J.
JUDGE