STATE OF OHIO, PLAINTIFF-APPELLEE, v. PETER A. LOTZER, II, DEFENDANT-APPELLANT.
CASE NO. 1-20-30
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
October 18, 2021
2021-Ohio-3701
ZIMMERMAN, J.
Appeal from Allen County Common Pleas Court, Trial Court No. CR 2019 0431. Judgment Affirmed.
William T. Cramer for Appellant
Jana E. Emerick for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Peter A. Lotzer, II (Lotzer), appeals the July 16, 2020 judgment entry of conviction and sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from the October 15, 2019 attempted traffic stop of Lotzer. Subsequent to the attempted stop, Lotzer parked the vehicle and fled from law enforcement on foot. Following a brief pursuit, Lotzer was apprehended and arrested where officers discovered methamphetamine along his flight path.
{¶3} On December 12, 2019, the Allen County Grand Jury indicted Lotzer on one count of aggravated possession of drugs in violation of
{¶4} On July 1, 2020, Lotzer filed a motion for leave to file a motion in limine, which the trial court granted the same day. (Doc. Nos. 88, 94). Thereafter, Lotzer filed a motion in limine challenging the admissibility of his recorded telephone calls from the Allen County Justice Center (ACJC) that occurred on October 15, 16, and 17, 2019 as well as the admissibility of a cell-phone-extraction report, which contained incoming and outgoing cell-phone calls, text messages, and images on dates prior to the date of offense. (Doc. No. 95). The trial court held a
{¶5} Lotzer‘s case proceeded to a jury trial on July 14 and 15, 2020, and he was found guilty of the single count in the indictment. (Doc. No. 109); (July 15, 2020 Tr., Vol. II, at 319-320). Thereafter, the trial court sentenced Lotzer to 36 months in prison. (Doc. No. 110); (Id. at 329). The judgment entry of conviction and sentencing was filed on July 16, 2020. (Doc. No. 110).
{¶6} Lotzer filed his notice of appeal on July 28, 2020, and raises two assignments of error for our review, which we will review separately. (Doc. No. 113).
Assignment of Error No. I
The trial court violated appellant‘s federal and state constitutional rights to due process, and Evid.R. 403(A) and Evid.R. 404(B) , by allowing evidence implicating appellant in prior drug use during a trial for drug possession.
{¶7} In his first assignment of error, Lotzer asserts that the trial court erred when it permitted other acts evidence that should have been subject to mandatory exclusion by the trial court on the basis that such evidence was unfairly prejudicial and likely to confuse the jury under
Standard of Review
{¶8} We review other acts evidence under
{¶9} De novo review is independent, without deference to the lower court‘s decision. Williams, 2021-Ohio-256, ¶ 11 (3d Dist.), quoting State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992). The term abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Id., citing State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶10}
{¶12} Lotzer challenges the admission of three distinct evidentiary items, which we will address separately.
Lotzer‘s & Pitney‘s Relationship & Lotzer‘s ties to 1227 Leland Avenue:
{¶13} First, Lotzer argues that the trial court plainly erred by permitting the State to introduce evidence regarding William Pitney‘s (Pitney) brother[ly] relationship with Lotzer and Lotzer‘s connection to 1227 Leland Avenue. (July 15, 2020 Tr., Vol. II, at 235-238, 259-260). Because Lotzer‘s trial counsel did not object to the admission of this testimony through Inv. Kunkleman and Investigator Aaron Montgomery (Inv. Montgomery), we apply a plain-error analysis to this part of Lotzer‘s argument. See
{¶14} A review of the record reveals that the State‘s lead witness, Inv. Kunkleman, testified that several complaints from local residents were received by law enforcement regarding suspicious activity at 1227 Leland Avenue. (July 14, 2020 Tr., Vol. I, at 116-118). Because of such complaints, Lima City Police
{¶15} Inv. Kunkleman testified that, on the date of Lotzer‘s arrest (October 15th), he (initially) observed Lotzer parked in the Leland Avenue residence‘s driveway. (Id. at 122-124). However, shortly thereafter, Lotzer goes to the door (but does not go inside) and then drives away. (Id.). According to Inv. Kunkleman, Ptlm. Mericle (the passenger in Inv. Kunkleman‘s cruiser) observed Lotzer commit a traffic violation when he drove from the residence. (Id. at 124). (See Def. Ex. A). As a result (of the traffic violation), Inv. Kunkleman radioed other officers in the area to initiate a traffic stop of Lotzer. (Id. at 123). Inv. Kunkleman testified Ptlm. Wyerick radioed him and advised that Lotzer‘s vehicle had turned onto Rice Avenue and was now parked at a residence on Rosedale Avenue. (Id. at 124-126).
{¶16} Inv. Kunkleman testified that he, Ptlm. Mericle, and Patrolman Synder apprehended Lotzer in that area and arrested him. (Id. at 127). At the time of his arrest, Inv. Kunkleman confiscated Lotzer‘s keys and his wallet containing Lotzer‘s photo identification (I.D.) from his person. (Id. at 127-128). (See July 15, 2020 Tr., Vol. II, at 259-260); (State‘s Ex. 21). Inv. Kunkleman identified Lotzer (in
{¶17} Inv. Montgomery testified that he received reports from Inv. Kunkleman regarding suspected drug activity at the Leland Avenue residence. (July 15, 2020 Tr., Vol. II, at 233-234). Based upon such information, Inv. Montgomery initiated a concurrent investigation by the West Central Ohio Crime Task Force, which ultimately led to the arrest of a resident of the Leland Avenue residence, William Pitney for drug-related activity.1 (Id. at 234-236.). Inv. Montgomery testified that because he was aware of a close relationship between Pitney and Lotzer he wanted to meet with Lotzer, Inv. Kunkleman, and Ptlm. Mericle after Lotzer was booked into the jail.2 (Id. at 238).
{¶18} Although this evidence clearly assists the trier of fact in the identification of Lotzer as the driver of the vehicle observed by Inv. Kunkleman and Ptlm. Wyerick and the person who fled from Ptlm. Wyerick along the path where illegal drugs were ultimately discovered, it is not evidence of other crimes, wrongs, or acts within the meaning of
{¶19} Moreover, this evidence provides an explanation as to why Lotzer‘s property (his keys and wallet containing his I.D.) confiscated from his person during his arrest and subsequently placed into his jail property was later discovered at the Leland Avenue residence during the execution of a search warrant on October 24, 2019 even though Lotzer was in jail on the instant criminal charge since being booked on October 15th. (July 15, 2020 Tr., Vol. II, at 259-260); (State‘s Ex. 21). (See State‘s Ex. 4). Indeed, Inv. Montgomery testified that Pitney‘s girlfriend (Victoria) came to the jail and signed out Lotzer‘s property. (Id. at 260); (See State‘s Ex. 4). Inv. Montgomery further testified that the plastic baggies that were recovered during the execution of the search warrant on October 24th and located inside the 1227 Leland Avenue residence appeared to be identical to the baggies that were packaged, or, that were located along Lotzer‘s flight path on October 15th. (July 15, 2020 Tr., Vol. II, at 257-261); (State‘s Exs. 19, 20). To us, Lotzer has failed to establish how this evidence (i.e., his relationship to Pitney and ties to
{¶20} Accordingly, the testimonies of Inv. Kunkleman and Inv. Montgomery regarding Lotzer‘s relationship with Pitney and his connection to 1227 Leland Avenue do not fall within the sphere of other acts evidence under
State‘s Exhibit 17
{¶21} The next part of Lotzer‘s argument asserts that State‘s Exhibit 17 (the October 17th jail call) and testimony offered through Inv. Montgomery where Lotzer stated in a jail house telephone conversation that law enforcement found less than a ball at the crime scene is also other acts evidence. Initially, Lotzer challenged the admission of his jail calls in his motion in limine. (Doc. No. 95); (July 8, 2020 Tr. at 5-6, 12); (State‘s Exs. 1, 2). However, he abandoned later challenges to the admission of that evidence after the jail calls were redacted by not objecting during Inv. Montgomery‘s testimony or during the admission of State‘s Exhibit 17. (July 15, 2020 Tr., Vol. II, at 253); (State‘s Ex. 17). Consequently, we apply a plain-error analysis to this this part of Lotzer‘s argument. See
{¶23} Though this evidence is certainly probative of identity and Lotzer‘s culpable mental state (identifying Lotzer as the person who knowingly possess[ed] the methamphetamine, elements of the instant offense), it is not [e]vidence of other crimes, wrongs, or acts as set forth in
State‘s Exhibit 15
{¶24} The last part of Lotzer‘s argument revolves around the testimony of Inv. Montgomery and State‘s Exhibit 15—the cell-phone-extraction report from the LG cell-phone found in the parked vehicle where Lotzer‘s flight commenced.3 (State‘s Exs. 10, 15). (See July 14, 2020 Tr., Vol. I, at 217-224); (July 15, 2020 Tr., Vol. II, at 245-247). The record reveals that Lotzer objected to Exhibit 15 by virtue of a motion in limine and at trial specifically focusing on a cell-phone-text message (from September 16, 2019) that stated But, I should be good for a ball arguing admission of this statement is violative of
{¶25} Indeed, this evidence implicates
{¶26} In order to apply the first and second steps of the Williams analysis, we undertake a review of the testimony from Lotzer‘s trial. At trial, the State presented Inv. Montgomery who testified that he was able to determine that the LG cell-phone belonged to Lotzer because Lotzer referenced (himself) by name when texting others; because there were selfies of Lotzer on the phone; and because the settings on the phone auto-filled Lotzer‘s personal information in applications on the phone. (July 15, 2020 Tr., Vol. II, at 245-247). Moreover, Inv. Montgomery testified that Lotzer‘s jail calls placed through Securus, the software utilized by the ACJC, were made to the same telephone numbers listed in Lotzer‘s contacts on the LG cell-phone. (Id. at 247); (State‘s Ex. 16, 17, 18). Importantly, Inv. Montgomery testified that during the course of Lotzer‘s jail calls Lotzer stated they have my phones and they won‘t give them back or my phones were in the car. (Emphasis added.) (Id. at 247-248). (See State‘s Exs. 10, 11). Under the facts presented, the
{¶27} In applying the third step of the Williams analysis, we are not able to determine that Inv. Montgomery‘s testimony (that Lotzer was the owner of the LG phone and Lotzer‘s jailhouse calls were in harmony with Lotzer‘s texting patterns as to content and use of street slang) is [ ] [unfairly] prejudicial ‘because the trial court instructed the jury that this evidence could not be considered to show that [Lotzer] acted in conformity with a character trait.’4 Lester at ¶ 47, quoting State v. Jones, 3d Dist. Logan No. 8-16-18, 2017-Ohio-4351, ¶ 13, quoting State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 28, quoting Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, at ¶ 24, (concluding [t]he trial court‘s limiting instruction lessened any prejudicial effect of the evidence). (See July 15, 2020 Tr., Vol. II, at 250, 310). Nevertheless, the trial court provided the jury with a well-tailored limiting instruction as to the purpose of this [e]vidence of other crimes, wrongs, or acts and mitigated the risk of unfair prejudice, confusion of the issues, or misleading the jury.5 See Hartman at ¶ 66. Thus, any prejudicial effect did not substantially outweigh the probative value of the evidence. See id.; State v. Regan,
{¶28} Accordingly, the trial court did not err by admitting State‘s Exhibit 15 and related testimony under
{¶29} Accordingly, Lotzer‘s first assignment of error is overruled.
Assignment of Error No. II
Appellant‘s rights to effective assistance of counsel under the federal and state constitutions were violated when trial counsel failed to object to evidence of appellant‘s involvement with drugs during a trial for drug possession.
{¶30} In his second assignment of error, Lotzer argues that his trial counsel was deficient in her performance by failing to object to impermissible nonpropensity evidence. Specifically, Lotzer asserts that trial counsel‘s failure to object to evidence related to Pitney‘s and Lotzer‘s relationship and evidence that tied Lotzer to 1227 Leland Avenue rendered trial counsel‘s performance deficient, thereby, prejudicing Lotzer.
Standard of Review
{¶31} 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, 2064 (1984). In order to show trial counsel‘s conduct was
{¶32} 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
{¶33} Because we concluded in Lotzer‘s first assignment of error that no impermissible nonpropensity evidence was admitted into evidence by the trial court,
{¶34} Accordingly, and for the reasons set forth above, Lotzer‘s second assignment of error is overruled.
{¶35} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., and MILLER, J., concur.
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