STATE OF OHIO, PLAINTIFF-APPELLEE, v. PAUL JEROD LESTER, AKA JEROD LESTER, DEFENDANT-APPELLANT.
CASE NOS. 14-18-21, 14-18-22
IN THE COURT OF APPEALS OF OHIO, THIRD APPELLATE DISTRICT, UNION COUNTY
May 18, 2020
[Cite as State v. Lester, 2020-Ohio-2988.]
Appeals from Union County Common Pleas Court, Trial Court No. 2018-CR-0012. Judgments Affirmed.
Joseph C. Patituce and Megan M. Patituce for Appellant
Raymond Kelly Hamilton for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Paul Jerod Lester (“Lester“), appeals the November 2, 2018 judgment entry of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a series of drug-related events involving Lester in Union County, Ohio, that took place at a hotel in Marysville on August 17, 2017 and on December 1, 2017 through January 11, 2018 at a residence in Raymond, Ohio.
{¶3} On March 1, 2018, the Union County Grand Jury indicted Lester on eight counts regarding the Raymond residence, including: Count One, trafficking in heroin in violation of
{¶4} Thereafter, on March 19, 2018, the Union County Grand Jury indicted Lester on four criminal charges involving the Marysville hotel in a separate indictment: Count One, trafficking in heroin in violation of
{¶5} On June 6, 2018, Lester filed his objection to joinder of his cases for trial and requested the indictments be tried separately. (Case No. 2018-CR-0012, Doc. No. 36); (Case No. 2018-CR-0061, Doc. No. 26). On August 21, 2018, the State filed its memorandum in opposition to Lester‘s objection to joinder together with its notice of intent to use “other-acts” evidence under
{¶6} Lester‘s case proceeded to a jury trial and he was found guilty of all counts in case number 2018-CR-0012, and of all counts in case number 2018-CR-0061. (Case No. 2018-CR-0012, Doc. Nos. 113, 114, 115, 116, 117, 118, 119, 120, 121); (Case No. 2018-CR-0061, Doc. Nos. 72, 73, 74, 75). Further, the jury found that the currency and property identified in the specifications in case number 2018-CR-0012 and of the currency identified in the specification in case number 2018-CR-0061 were subject to forfeiture. (Case No. 2018-CR-0012, Doc. Nos. 113, 114, 116, 120); (Case No. 2018-CR-0061, Doc. No. 74).
{¶7} On November 2, 2018, the trial court sentenced Lester. (Case No. 2018-CR-0012, Doc. No. 121). In case number 2018-CR-0012 the trial court sentenced Lester to prison for a mandatory term of 7 years on Count Six, 11 months each on Counts One, Two, and Three, 30 months on Counts Five and Seven, and 1 year on Count Eight. (Id.). The terms were ordered to be served consecutively for an aggregate sentence of 24 years and 9 months, 7 years of which being mandatory.1 (Nov. 2, 2018 Tr. at 145); (Case No. 2018-CR-0012, Doc. No. 121). In case number
{¶8} Lester filed his notices of appeal in both cases on November 13, 2018, which we have consolidated for the purpose of this appeal. (Case No. 2018-CR-0012, Doc. No. 126); (Case No. 2018-CR-0061, Doc. No. 81). Lester raises the following eight assignments of error for our review.
Assignment of Error No. I
The trial court committed reversible error in granting the state‘s motion to join the two indictments.
Assignment of Error No. II
The trial court erred in permitting the state to introduce evidence pursuant to
Assignment of Error No. III
The trial court erred in permitting the state to introduce prejudicial evidence of bad acts committed by other individuals, depriving defendant of substantial constitutional rights.
The state engaged in prosecutorial misconduct throughout the course of the trial that deprived the defendant of his right to a fair trial.
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.
Assignment of Error No. VI
The cumulative effect of this multitude of errors in this case deprived defendant of his constitutionally guaranteed right to a fair trial.
Assignment of Error No. VII
Defendant‘s conviction was against the manifest weight of the evidence.
Assignment of Error No. VIII
The state failed to present sufficient evidence to sustain a conviction.
{¶9} For ease of our discussion, we will first review Lester‘s seventh and eighth assignments of error together, followed by his first assignment of error, then his second and third assignments of error together, and finally followed by his fifth, fourth, and sixth assignments error, which we will address separately.
Defendant‘s conviction was against the manifest weight of the evidence.
Assignment of Error No. VIII
The state failed to present sufficient evidence to sustain a conviction.
{¶10} In his seventh and eighth assignments of error, Lester argues that his convictions are based on insufficient evidence and are against the manifest weight of the evidence. In particular, in his eighth assignment of error, Lester argues that the State presented insufficient evidence to establish a predicate offense (as to Count Six of the Raymond-residence indictment), and therefore he could not have been convicted of engaging in a pattern of corrupt activity as to Count Eight. In his seventh assignment of error, Lester argues that the weight of the evidence demonstrates that the jury lost their way (by finding him guilty) because the State offered no evidence that he sold or offered to sell drugs (as to Count Four of the Raymond-residence indictment) when they determined that Lester manufactured crack cocaine (as to Counts 6 and 8), rather than purchasing it from another person.
Standard of Review
{¶11} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997), superseded by statute on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Thus, we address each legal concept individually.
{¶12} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by statute on other grounds, Smith, 80 Ohio St.3d at 89, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 1st Dist. Hamilton No. C-110097, 2011-Ohio-6267, ¶ 25, citing Jackson. See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.“), citing Thompkins at 386.
Sufficiency of the Evidence Analysis
{¶14} We begin by addressing Lester‘s sufficiency-of-the-evidence argument in his eighth assignment of error as it relates to Counts Six and Eight in the Raymond-residence indictment. In Count Six of the indictment, Lester was indicted for illegal manufacturing of drugs under
A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.
{¶15} Importantly, “the [S]tate is not required to prove that [Lester] is the individual who assembled all of the materials[,] but rather need “only prove that [Lester] engaged in any part of the production of [crack cocaine], which includes extraction and other activities incident to production.“” State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 37, citing
{¶16} Lester argues that his illegal-manufacture-of-drugs conviction (under Count Six) is based on insufficient evidence because the State failed to prove that Lester knowingly manufactured crack cocaine. We disagree. To prove Lester‘s knowledge of and connection to the manufacturing process of crack cocaine, the
{¶17} Next, the State offered the testimony of Alyssa Carver (“Carver“). Carver testified she saw Czarnecki making crack cocaine for Lester from Lester‘s “product” (i.e., powder cocaine) at the Raymond residence. (Oct. 31, 2018 Tr., Vol. II, at 175). Then, the State called Samantha Righter (“Righter“). Righter testified that she observed crack cocaine at the Raymond residence, and she saw Lester making it and described Lester‘s “process.” (Oct. 30, 2018 Tr., Vol. I, at 176-177).
{¶18} Lastly, the State presented the testimony of Detective Eric Kolopajlo (“Det. Kolopajlo“) who testified that he photographed “the makings of Crack Cocaine” which included baking soda, a pot filled with water, a little rock which resembled a crack rock, and torn-plastic-baggies for use in transporting contraband. (Oct. 31, 2018 Tr., Vol. I, at 25-27, 33, 40). (See State‘s Ex. 90). See State v. Forney, 9th Dist. Summit No. 24361, 2009-Ohio-2999, ¶¶ 8, 12.
{¶20} Next, Lester argues that his engaging-in-a-pattern-of-corrupt-activity conviction (under Count Eight) is also based on insufficient evidence. Specifically, Lester argues that the State presented insufficient evidence that Lester illegally manufactured crack cocaine (under Count Six) which was a predicate offense relating to his engaging-in-a-pattern-of-corrupt-activity charge.2 We disagree.
{¶21} Engaging in a pattern of corrupt activity under
(A)(1) No person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.
“Enterprise” includes any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity. “Enterprise” includes illicit as well as licit enterprises.
“Pattern of corrupt activity” means two or more incidents of corrupt activity, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event.
Corrupt activity is defined in
“Corrupt activity” means engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in any of the following:
* * *
(2) Conduct constituting any of the following:
* * *
(c) Any violation of section * * *
2925.04 * * * of the Revised Code.
{¶22} Our determination that sufficient evidence exists for Lester‘s illegal-manufacture-of-drugs conviction under Count Six is dispositive of this assignment of error since Lester only challenges the sufficiency of the evidence related to the predicate offense (i.e., Count Six, illegal manufacture of drugs) as to his engaging-in-a-pattern-of-corrupt-activity conviction. Accordingly, based on the evidence in the record, a rational trier of fact could conclude beyond a reasonable doubt that Lester engaged in a pattern of corrupt activity (under Count Eight) by virtue of his illegal-manufacturing-of-crack-cocaine conviction under Count Six, the predicate
Manifest Weight of the Evidence Analysis
{¶23} As an initial matter, although Lester challenges the weight of the evidence supporting the jury‘s findings of guilt as to the aggravated-trafficking-in-drugs charge under Count Four of the indictment, we need not address that argument. State v. Turner, 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-144, ¶ 22, citing State v. Croom, 7th Dist. Mahoning No. 12 MA 54, 2013-Ohio-5682, ¶¶ 60-61 and State v. Zimmer, 8th Dist. Cuyahoga No. 104946, 2017-Ohio-4440, ¶ 9, quoting State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14. Specifically, “[w]hen counts in an indictment are allied offenses, and there is sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the appellate court need not consider the sufficiency [or weight] of the evidence on the count that is subject to merger because any error would be harmless” beyond a reasonable doubt. Ramos at ¶ 14, citing State v. Powell, 49 Ohio St.3d 255, 263 (1990), superseded by state constitutional amendment on other grounds, Smith, 80 Ohio St.3d at 102, fn. 4.3
{¶25} The evidence we summarized in our sufficiency-of-the-evidence analysis supporting Lester‘s illegal-manufacturing-of-drugs conviction is weightier than the evidence against that conviction. Lester now argues that there were multiple-independent-criminal enterprises operating at the Raymond residence (which included Czarnecki‘s illegal-manufacturing-of-drugs operation-producing crack cocaine), and that it is reasonable to assume that he did not use his Columbus source as his supply for crack cocaine, but rather, Czarnecki. However, the State‘s evidence leads us to a different conclusion because the record supports that Lester directed Czarnecki to manufacture crack cocaine (supplying him with the location, equipment, and raw materials), and relied on Czarnecki‘s drug-making experience for the crack cocaine manufacturing “process“. (Oct. 30, 2018 Tr., Vol. II, at 265-266).
{¶26} Essentially, Lester argues that Czarnecki‘s testimony was not credible and that we as the “thirteenth juror” should determine that Czarnecki illegally and independently of Lester‘s criminal enterprise, manufactured crack cocaine. Based on the record before us, we decline to reach this conclusion and find his argument to be without merit because the evidence weighs against such a finding based upon the testimonies of Czarnecki, Carver, and Righter. Thus, Lester‘s illegal-
{¶27} Because we determined that Lester‘s illegal-manufacture-of-drugs conviction (under Count Six) is not against the manifest weight of the evidence and because Lester‘s conviction under Count Eight was tied to Count Six, we conclude that Lester‘s engaging-in-a-pattern-of-corrupt-activity conviction, consequently, is also not against the manifest weight of the evidence. State v. Schlosser, 79 Ohio St.3d 329, 334 (1997), (stating “The pattern of corrupt activity is demonstrated by the fact that [Schlosser] committed the predicate offense.“).
{¶28} Accordingly, Lester‘s seventh and eighth assignments of error are overruled.
Assignment of Error No. I
The trial court committed reversible error in granting the state‘s motion to join the two indictments.
{¶29} In his first assignment of error, Lester argues that the trial court erred in denying Lester‘s-motion-to sever his cases for trial. Specifically, Lester argues that the trial court should have ordered separate trials because the facts of each case were not separate and distinct and would be confusing to the jury.
Standard of Review
{¶30} “Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience
To prevail on a claim of prejudicial joinder, the defendant must affirmatively demonstrate that (1) his rights were prejudiced by the failure to sever, (2) he provided the trial court with sufficient information to allow it to weigh the benefits of joinder against the defendant‘s right to a fair trial, and (3) the trial court abused its discretion by refusing to sever the charges for trial.
State v. Jeffries, 1st Dist. Hamilton No. 2018-Ohio-2160, ¶ 57, citing Schaim at 59, citing Torres, syllabus. See State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-Ohio-3524, ¶ 82, citing Schaim at 59, citing Torres, syllabus.
{¶31} Generally, we review a trial court‘s decision on a motion to sever under Crim.R. 14 for an abuse of discretion. State v. Kelly, 5th Dist. Delaware No. 17CAA040023, 2018-Ohio-378, ¶ 64, citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 166, citing Torres, 66 Ohio St.2d at 343. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{¶32} Importantly, Lester failed to renew his motion for severance at the close of the State‘s case or at the close of all evidence. (Nov. 1, 2018 Tr., Vol. III, Tr. at 394). Consequently, Lester has waived all but plain error on appeal, and to us Lester cannot demonstrate plain error in his argument. “However, a defendant‘s failure to renew his or her Crim.R. 14 motion for severance at the close of the State‘s case or at the close of all evidence waives all but plain error on appeal.” Howard at ¶ 82, citing State v. Miller, 105 Ohio App.3d 679, 691 (4th Dist.1995). See also State v. Muller, 3d Dist. Defiance No. 4-11-09, 2012-Ohio-3530, ¶ 34; Kelly at ¶ 63. “To demonstrate plain error, the defendant must demonstrate that the trial court deviated from a legal rule, the error was an obvious defect in the proceeding, and the error affected a substantial right.” Howard at ¶ 83, citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “The defendant must also demonstrate that the outcome of his trial would clearly have been different but for the trial court‘s errors.” Id., citing State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v. Moreland, 50 Ohio St.3d 58, 63. “We recognize plain error “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.“” Id., quoting State v. Landrum, 53 Ohio St.3d 107, 110 (1990), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶34} Moreover, the record reveals that the trial court instructed the jury that “[t]he charges set forth in each count in the indictment constitute a separate and distinct matter. You must consider each count and the evidence applicable to each count separately.” (Nov. 2, 2018 Tr. at 95-96). Compare Thomas at ¶ 24. See Torres at 343, citing State v. Roberts, 62 Ohio St.2d 170, 175 (1980), (“We find no merit in this claim because the jury is believed capable of segregating the proof on
Thus, for these reasons, Lester has failed to demonstrate that there was an obvious defect in the proceedings or that the outcome of his trial would have been different.
{¶35} Accordingly, the trial court did not commit any error, let alone plain error, by denying Lester’s motion to sever and Lester’s first assignment of error is overruled.
Assignment of Error No. II
The trial court erred in permitting the state to introduce evidence pursuant to
Evid.R. 404(B) that was not relevant and whose prejudicial value substantially outweighed any probative value.
Assignment of Error No. III
The trial court erred in permitting the state to introduce prejudicial evidence of bad acts committed by other individuals, depriving defendant of substantial constitutional rights.
{¶36} In Lester’s second assignment of error, he argues that the State offered testimony related to “other acts” evidence outside the relevant-time frames set forth in the indictments which were irrelevant and unfairly prejudicial under State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695. 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
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
{¶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.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} “
“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
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
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
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
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
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? [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
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) 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
{¶49} We note that, unlike other rules of evidence, the plain language of
{¶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
{¶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
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.
{¶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
{¶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).
{¶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
{¶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.” Id., 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
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.
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, 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
{¶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
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
{¶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
{¶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, 2015-Ohio-2977, ¶ 63 and
{¶76} Here, Lester‘s argument raises issue with several comments made by the State during its closing argument which he argues were attempts to garner sympathy for the witnesses. (See Nov. 2, 2018 Tr. at 18). “‘We evaluate the allegedly improper statements in the context of the entire trial.’” Stevens at ¶ 72, quoting State v. McGuire, 3d Dist. Allen No. 1-13-47, 2015-Ohio-1887, ¶ 82, citing State v. Treesh, 90 Ohio St.3d 460, 464 (2001), citing State v. Keenan, 66 Ohio St.3d 402, 410 (1993). Lester‘s first allegation is that the prosecutor garnered sympathy for several witnesses by calling them “addicts“. Regarding his allegation, taken in context, the prosecutor was summarizing those witnesses’ testimonies regarding their admitted drug abuse when characterizing those witnesses as “addicts” which was permissible and based on the evidence presented during trial. Id., (concluding that after taking the statements in context the prosecutor was summarizing the
{¶77} Then, Lester argues that the prosecutor‘s statements regarding the prosecutor‘s familiarity with “12 step program[s]” when summarizing Maynard‘s testimony and his reference to Holton‘s testimony as “fabulous” and “honest” were examples of improper vouching or bolstering. (Nov. 2, 2018 Tr. at 33, 35). “An attorney may not express a personal belief or opinion as to the credibility of a witness.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 232, citing Williams, 79 Ohio St.3d at 12. Improper “vouching occurs when the prosecutor implies knowledge of facts outside the record or places his or her personal credibility in issue.” Id., citing State v. Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, ¶ 117. Upon review, we conclude that the prosecutor did not improperly vouch for or bolster Maynard and Holton‘s credibility. That is—the prosecutor did not state that he personally believed Maynard or Holton, nor did he place his (the prosecutor‘s) credibility at issue. Instead, he merely argued that certain facts, presented during the trial, demonstrated that various witnesses were credible witnesses. State v. Green, 90 Ohio St.3d 352, 374 (2000), (concluding that the prosecutor properly argued facts to support witness‘s credibility and that he did not improperly vouch for her).
[State of Ohio]: The State of Ohio, as represented as best I very much could, ask that you return guilty verdicts against Jerod Lester for each of these 12 counts in the two different cases. Why? Just like we held those other people accountable who testified against him, we must hold Jerod Paul Lester accountable. Thank you.
(Emphasis added.) (Nov. 2, 2018 Tr. at 67). The prosecutor‘s statement is not appealing to the jury‘s sense of fairness, but rather the prosecutor is offering a summary of the testimony that the jury heard regarding one of the witnesses who was convicted as a result of his involvement in Lester‘s-criminal enterprise. (See Oct. 30, 2018 Tr., Vol. I, at 83). See also State v. Klapka, 11th Dist. Lake No. 2003-L-044, 2004-Ohio-2921, ¶ 44, citing Frazier v. Cupp, 394 U.S. 731, 735 (1969).
{¶79} In our review of the record we cannot conclude that the statements of the prosecutor made during closing argument resulted in a miscarriage of justice.
{¶80} Lastly, Lester argues that the cumulative effect of prosecutorial misconduct deprived him of a fair trial. Because we have determined that no prosecutorial misconduct occurred based on the facts before us, there is no basis for
Assignment of Error No. VI
The cumulative effect of this multitude of errors in this case deprived defendant of his constitutionally guaranteed right to a fair trial.
{¶81} Finally, Lester argues that the cumulative effect of the trial court‘s errors denied him a fair trial.
Standard of Review
{¶82} “Under [the] doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial court error does not individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 222-224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “To find cumulative error, a court must first find multiple errors committed at trial and determine that there is a reasonable probability that the outcome below would have been different but for the combination of the harmless errors.” State v. Stober, 3d Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist. Putnam No. 12-11-06, 2012-Ohio-1467, 36.
Analysis
{¶83} We conclude this assignment of error to be without merit because we found no error in Lester‘s prior seven assignments of error. As such, the doctrine of cumulative error does not apply. State v. Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110.
{¶84} Lester‘s sixth assignment of error is overruled.
{¶85} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr