STATE OF OHIO v. G. TIMOTHY MARSHALL
No. 100736
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 25, 2015
2015-Ohio-2511
BEFORE: Klatt, J., Sadler, P.J. and Dorrian, J.* (*Sitting by assignment: Judges of the Tenth District Court of Appeals)
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-571014-D
RELEASED AND JOURNALIZED: June 25, 2015
Timothy F. Sweeney
The 820 Bldg., Suite 430
820 West Superior Avenue
Cleveland, OH 44113-1800
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Christopher D. Schroeder
Matthew E. Meyer
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, G. Timothy Marshall, appeals from a judgment of conviction entered by the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm that judgment.
I. Factual and Procedural Background
{¶2} On January 28, 2013, a grand jury indicted Marshall and three others: Thomas Castro, Marc Doumbas, and Anthony Calabrese, for a variety of charges arising from bribery allegations. Specifically, Marshall, Doumbas and Calabrese were lawyers who represented Castro in connection with criminal charges filed against him for the alleged rape of two women, M.T. and L.A. With respect to Marshall, the bribery charges alleged: (1) that he offered money to M.T. if she agreed to drop her charges against Castro; and (2) after Castro entered guilty pleas to sexual battery in his criminal case, Marshall offered money to M.T. if she agreed to say something nice about Castro at the sentencing hearing.
{¶3} Calabrese and Castro entered guilty pleas to a number of charges including bribery before trial, leaving Marshall and Doumbas as the only remaining defendants at trial. Doumbas was convicted of two counts of bribery and those convictions are the subject of a separate appeal in this court. State v. Doumbas, 8th Dist. Cuyahoga No. 100777. By the time of trial, the only remaining charges against Marshall were two counts of bribery in violation of
{¶4} Castro was indicted for the alleged rapes in January 2012. After the indictment, he asked his corporate attorney, Calabrese, for advice on how to proceed. Calabrese recommended that he call Marshall and Doumbas, who were both experienced criminal lawyers. Additionally, Doumbas had previously represented Castro in a previous dispute involving L.A.
{¶5} After Castro met with Marshall and Doumbas to discuss the indictment, Marshall contacted a former employee of his, Trina Fenn, who worked with M.T. in the Cuyahoga County Prosecutor’s Office. Marshall asked Fenn and another former employee, Mary Jo O’Toole, to meet for lunch at the Blue Point restaurant in downtown Cleveland. Marshall, Fenn and O’Toole, along with Doumbas and a friend of Marshall’s, met at the restaurant on April 19, 2012. Doumbas arrived late to the lunch. Marshall sought to learn what he could about M.T. from Fenn.
{¶6} During the lunch, Marshall asked Fenn if she knew M.T. and explained that Doumbas was representing someone against criminal accusations made by M.T. Marshall then told Fenn what happened between M.T. and Castro and asked her to talk to M.T. and find out if M.T. would settle the matter. Fenn recalls Marshall using the term “civil settlement.” Marshall offered $54,000 for M.T.’s pain and suffering as well as $6,000 for whoever represented her. Based upon what Marshall stated, Fenn believed that if M.T. entered into the settlement, the criminal case would “go away.” (Tr. 639.) Although O’Toole did not hear the entire conversation, from what she did hear, she
{¶7} Fenn told M.T. about Marshall’s offer a couple months later. M.T. recalled the conversation she had with Fenn. M.T. testified that Fenn told her that she (M.T.) would get $50,000 to drop the charges against Castro. The offer devastated M.T. because she felt that it was wrong and illegal. (Tr. 702.) M.T. then told the prosecutor handling the case against Castro about the offer. This alleged offer is the basis for one of Marshall’s bribery convictions.1
B. Marshall’s Discussion with Harvey Bruner
{¶8} Marshall’s second bribery conviction is based upon a telephone conversation Marshall had with attorney Harvey Bruner. On October 17, 2012, Castro entered a guilty plea to two counts of sexual battery in his criminal case. At that point, Doumbas and Marshall started to think about what they could do to mitigate Castro’s possible prison sentence. (Tr. 1403.) Marshall and Doumbas discussed that Marshall would contact Bruner, a criminal defense attorney whom Marshall had known for a long time. Marshall decided to contact Bruner because he represented M.T.’s boyfriend, John Brown, in an unrelated criminal matter. The idea was that Bruner, through Brown, could contact M.T. and that Bruner could potentially represent her in reaching a civil settlement. (Tr. 1111.)
C. The Trial
{¶10} The lay witnesses at trial testified to the version of events described above. Both sides also called an expert witness to discuss the legal and ethical aspects of the case. Marshall called Robert Glickman, an experienced attorney. Glickman testified that in his legal opinion, it is not a crime for a defense attorney to initiate settlement
{¶11} The state presented expert testimony from George Jonson, another experienced attorney, albeit one more focused on attorney disciplinary matters. Jonson agreed that it was legally permissible for a criminal defense attorney to negotiate a civil settlement with a crime victim on behalf of the defendant. (Tr. 861.) He opined, however, that the defense attorney could not condition a settlement payment on: (1) the victim’s agreement to request that the criminal charges be dropped; or (2) the victim’s agreement to request that the defendant not be sent to prison. Jonson concluded that such conduct would be akin to paying someone for testimony, which is not permissible. Jonson testified that his conclusion was limited to a consideration of Ohio’s Rules of Professional Conduct for attorneys. He did not opine whether Marshall’s actions violated any criminal law of the state, including the bribery statute. (Tr. 887.)
{¶12} Ultimately, a jury found Marshall guilty of both counts of bribery and the trial court sentenced him accordingly.
II. Marshall’s Appeal
{¶13} On appeal, Marshall presents nine assignments of error:
- Marshall was denied due process and a fair trial when the trial court failed to properly instruct the jury on the essential element of bribery
that the defendant’s unlawful purpose to corrupt or improperly influence a witness must be, in all events, “with respect to [the witness’s] testimony in an official proceeding.” - Marshall was denied due process, trial by an impartial jury, and a fair trial, and there was plain error, when the trial court: (a) permitted the State to present “expert” testimony of George Jonson on irrelevant and prejudicial matters and on purely legal issues, and (b) failed to bar all testimony from Jonson after the State elicited testimony from him that he represents “all the judges in Ohio.”
- Marshall was denied due process, trial by an impartial jury, and a fair trial, and there was plain error, because the court failed to provide essential jury instructions that the law generally permits the negotiation and/or consummation of a civil settlement between a criminal defendant and crime victim of money damage claims arising from the underlying alleged criminal acts that includes: (a) the victim’s truthful request to the prosecutor that criminal charges be dismissed, “dropped,” or reduced; and/or (b) a requirement that the victim accurately report any such settlement at sentencing.
- Marshall was denied due process, trial by an impartial jury, and a fair trial when the trial court repeatedly allowed lay witnesses to offer their inadmissible and prejudicial “opinions” or “impressions” including about ultimate issues in the case, and to testify in the form of legal conclusions.
- Marshall’s convictions are based on evidence that is insufficient as a matter of law, in violation of Marshall’s rights to due process and a fair trial as guaranteed by the U.S. and Ohio Constitutions.
- Marshall was denied due process and a fair trial, and the trial court abused its discretion, when the court failed to allow Marshall to conduct a full and effective cross-examination of Harvey Bruner and refused to allow Marshall to introduce extrinsic evidence of Bruner’s prior inconsistent statements to the defense investigator (and others).
- Prosecutorial misconduct in numerous respects denied Marshall a fair trial and violated his right to due process in violation of the U.S. and Ohio Constitutions.
- Marshall’s trial counsel provided ineffective assistance of counsel in numerous respects, thereby denying Marshall his rights under the U.S. and Ohio Constitutions.
- Marshall’s convictions are against the manifest weight of the evidence.
{¶14} We will address Marshall’s assignments of error out of order for analytical clarity.
A. Marshall’s Second and Fourth Assignments of Error
{¶15} We address Marshall’s second and fourth assignments of error together because they both involve the trial court’s decision to admit testimony.
{¶16} The decision whether to admit or to exclude evidence rests within the sound discretion of the trial court. State v. Brown, 8th Dist. Cuyahoga No. 99024, 2013-Ohio-3134, ¶ 50, citing State v. Jacks, 63 Ohio App.3d 200, 207 (8th Dist.1989). Therefore, an appellate court that reviews the trial court’s decision with respect to the admission or exclusion of evidence must limit its review to a determination of whether the trial court committed an abuse of discretion. Id., citing State v. Finnerty, 45 Ohio St.3d 104, 107 (1989). An abuse of discretion requires a finding that the trial court’s decision was unreasonable, arbitrary, or unconscionable. State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 23, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
1. Admission of Expert Testimony
{¶18} Marshall first argues that Jonson should not have been permitted to give expert testimony regarding what constitutes bribery because an expert witness cannot opine about what the law prohibits or permits. We note that Jonson did not offer an opinion regarding the requirements of the bribery statute or any other criminal law. His testimony focused on what was impermissible under Ohio’s Rules of Professional Conduct for attorneys. Therefore, Marshall’s first argument is meritless.
{¶20} Marshall also argues that the trial court should have excluded Jonson’s testimony because he testified that he represented “all the judges in Ohio.” Apparently, the liability insurer for Ohio’s judges has retained Jonson to represent judges when they are sued in their official capacities. Marshall surmises that this comment might have led the jury to believe Jonson was the trial judge’s lawyer and thereby enhance Jonson’s credibility. Because this argument is pure speculation, it carries little weight, particularly in a plain error context. Therefore, we reject it.
{¶21} Lastly, Marshall contends that Jonson’s testimony should have been excluded under
{¶22} For these reasons, the trial court did not commit plain error by admitting Jonson’s testimony. Therefore, we overrule Marshall’s second assignment of error.
2. Admission of Lay Witness Opinion Testimony
{¶23} Marshall argues in his fourth assignment of error that the trial court erred by allowing lay witnesses to offer their opinions and impressions about ultimate issues in the case, including legal conclusions. Marshall points to testimony from M.T., Fenn, Bruner, O’Toole, and Brown in which they gave their impressions or opinions, mostly over Marshall’s objections, about events that they observed. In most of these instances, the witnesses testified that they believed Marshall was doing something wrong or illegal or that they thought he was trying to bribe M.T. Marshall argues that the admission of this opinion testimony violated
{¶24}
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’[s] testimony or the determination of a fact in issue.
{¶25} Lay opinions, inferences, impressions, or conclusions are admissible if they are those that a rational person would form on the basis of the observed facts and if they
{¶26} The complained of testimony from these witnesses satisfies the requirements of
{¶27} For the foregoing reasons, we find no error in the trial court’s decisions to admit the testimony discussed above. Accordingly, we overrule Marshall’s fourth assignment of error.
{¶28} In Marshall’s sixth assignment of error, he contends that the trial court abused its discretion by limiting his cross-examination of Harvey Bruner and by prohibiting the introduction of extrinsic evidence of an alleged prior inconsistent statement by Bruner. We disagree.
{¶29} The scope of cross-examination is governed by
{¶30} Although a defendant must be given the opportunity to cross-examine all witnesses against him as a matter of right, the scope of that cross-examination is within the discretion of the trial court. State v. Watson, 8th Dist. Cuyahoga No. 90962, 2009-Ohio-2120, ¶ 62, citing State v. Faulkner, 56 Ohio St.2d 42, 46 (1978). Accordingly, we review the trial court’s limitation of cross-examination under an abuse of discretion standard. Watson at ¶ 60, citing State v. Gresham, 8th Dist. Cuyahoga No. 81250, 2003-Ohio-744.
{¶31} Marshall challenges the trial court’s limitations on his cross-examination of Bruner. At some point in time, Bruner filed for personal bankruptcy. Apparently, there were allegations in the bankruptcy case that Bruner’s bankruptcy petition contained false statements. Marshall sought to question Bruner about those allegations. Marshall claims that the allegations were probative of Bruner’s credibility. The trial court refused to allow the questioning because there was no judicial finding that Bruner made any false statements in his bankruptcy filings, and without such a finding, the allegations had “zero probative value” and would confuse the jury. (Tr. 731.) We agree. Without a judicial finding that Bruner made false statements in the bankruptcy filings, mere allegations of such conduct would only serve to confuse the issues. The trial court did not abuse its discretion by refusing to allow cross-examination on this topic.
{¶32} Marshall also argues that the trial court abused its discretion by not allowing him to present extrinsic evidence of alleged prior inconsistent statements made by Bruner to an investigator. Again, we disagree.
{¶33}
Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise
require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action other than the credibility of a witness.
{¶34} The decision whether to admit extrinsic evidence of a prior inconsistent statement which is collateral to the issue being tried and pertinent to the credibility of a witness is a matter within the sound discretion of the trial judge. State v. Soke, 105 Ohio App.3d 226, 239 (8th Dist.1995), citing State v. Cornett, 82 Ohio App.3d 624, 635 (12th Dist.1992); State v. McKinney, 8th Dist. Cuyahoga No. 99270, 2013-Ohio-5730, ¶ 13.
{¶35} For extrinsic evidence to be admissible under
{¶36} If a witness denies making the statement, extrinsic evidence of the statement is generally admissible if it relates to “[a] fact that is of consequence to the determination of the action.”
{¶37} During his questioning, Bruner testified that he and Marshall discussed the payment of money and that the amount mentioned was $50,000. After Bruner testified, Marshall’s trial counsel claimed that Bruner made prior statements to investigator Bob DeSimone that were inconsistent with Bruner’s trial testimony and sought to have DeSimone testify about those statements. Most significantly, Marshall’s trial counsel proffered that DeSimone would testify that Bruner told him that he and Marshall did not discuss a specific amount of money and that he (Bruner) could not recall whether he and Marshall discussed the payment of money.
{¶38} The trial court did not allow DeSimone to testify, concluding that trial counsel did not lay the proper foundation for his testimony by presenting the statements to Bruner and allowing him a chance to admit or deny making the statements. After reviewing the record, we cannot conclude that the trial court abused its discretion because it is unclear whether Marshall’s trial counsel laid a proper foundation to admit the
{¶39}
{¶40} For this reason, we overrule Marshall’s sixth assignment of error.
C. Marshall’s First and Third Assignments of Error
{¶41} Marshall’s first and third assignments of error address alleged errors in the trial court’s jury instructions and will, therefore, also be addressed together.
1. Marshall’s Arguments
{¶43} First, Marshall argues that the trial court improperly instructed the jury on the elements of bribery. We disagree.
{¶44} Marshall was charged with two counts of bribery in violation of
No person, with purpose to corrupt a witness or improperly to influence a witness with respect to the witness’s testimony in an official proceeding, either before or after the witness is subpoenaed or sworn, shall promise, offer, or give the witness or another person any valuable thing or valuable benefit.
{¶45} The trial court, parroting the language of the statute, instructed the jury that in order to find Marshall guilty of bribery, it had to find beyond a reasonable doubt that he “did promise, offer or give [M.T.], a witness or another person, any valuable thing or
{¶46} Marshall argues that this instruction was improper because there are two distinct ways to commit bribery under the statute: (1) offering or giving any valuable thing or benefit with purpose to corrupt a witness; or (2) offering or giving any valuable thing or benefit to improperly influence a witness. Marshall argues that the modifier, “with respect to the witness’s testimony in an official proceeding” that follows the second form of bribery, applies to both forms of bribery. We disagree.
{¶47} Pursuant to
{¶48} Absent an intention to the contrary, we read the statute in accordance with the last antecedent rule and conclude that the trial court’s jury instruction on bribery was not error.
{¶49} To the extent Marshall argues his interpretation of the statute comports with the rule of lenity, such rule applies only where there is an ambiguity in a statute or a conflict between multiple statutes. U.S. v. Lanier, 520 U.S. 259, 266 (1997). Marshall, however, does not claim that the statute is ambiguous. Nor do we find any ambiguity. Therefore, the rule of lenity does not apply.
{¶50} Marshall also argues in his third assignment of error that the trial court should have, apparently sua sponte, instructed the jury that the law generally permits a criminal defendant to negotiate and consummate civil settlements with a crime victim.
{¶51} Finding no error in the trial court’s jury instructions, we overrule Marshall’s first and third assignments of error.
D. Marshall’s Fifth and Ninth Assignments of Error
{¶52} In his fifth and ninth assignments of error, Marshall contends that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. Again, we disagree.
{¶53} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 119, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 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 and to determine whether such evidence, if believed, would convince the average mind of
{¶54} “‘A manifest weight challenge, on the other hand, questions whether the prosecution met its burden of persuasion.’” Wells at ¶ 127, quoting State v. Ponce, 8th Dist. Cuyahoga No. 91329, 2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80 (1982). The manifest weight of the evidence standard of review requires us to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id., citing State v. Otten, 33 Ohio App.3d 339 (9th Dist.1986), paragraph one of the syllabus. The discretionary power to grant a new trial should be exercised only in exceptional cases where the evidence weighs heavily against the conviction. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶55} The weight to be given the evidence and the credibility of the witnesses are matters primarily for the trier of fact. State v. Patterson, 8th Dist. Cuyahoga No. 98127, 2012-Ohio-5511, ¶ 13, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or disbelieve any witness or accept part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶56} In order to find Marshall guilty of bribery in this case, the state had to prove beyond a reasonable doubt that he promised, offered or gave M.T. any valuable thing or benefit, to wit: money, with purpose to corrupt M.T. or to improperly influence her with respect to her testimony in an official proceeding either before or after she was subpoenaed or sworn.
{¶57} The trial court defined: (1) an “offer” as a means to present for acceptance or rejection; (2) “to corrupt” as a means to destroy or undermine the honesty or integrity of another, to taint, to affect; and (3) an “official proceeding” as any proceeding before a legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath. The parties do not dispute these definitions.
1. Marshall’s Arguments
{¶58} Marshall first argues that the state did not prove that he promised, offered, or gave M.T. a benefit or thing of value. He argues that at most, he extended an invitation to enter into settlement negotiations, which is not a valuable thing or benefit. Marshall also argues that the state failed to prove that he acted with purpose to corrupt M.T. or to improperly influence her with respect to her testimony in an official proceeding because there was no evidence that M.T. was ever asked to lie or change her testimony. We find these arguments unpersuasive.
{¶59} Fenn testified that Marshall told her during the lunch there was $54,000 available for M.T. should M.T. want to settle her claims against Castro. O’Toole left the lunch thinking that Marshall asked Fenn to approach M.T. to see if she would drop the criminal charges against Castro in exchange for a cash payment. M.T. testified that when Fenn talked to her about the conversation with Marshall, Fenn told her that Marshall offered $50,000 if M.T. would agree to drop the charges.
{¶60} Marshall argues that his comments were intended only as an invitation to M.T. to enter into settlement negotiations, not the offer of a valuable thing or benefit. There can be no doubt that money is a “valuable thing or benefit” for purposes of
{¶61} The next question is whether the state also presented sufficient evidence to demonstrate that Marshall made the offer of money with the purpose to corrupt M.T. or to improperly influence her with respect to her testimony in an official proceeding either
{¶62} Based upon the trial testimony, rational minds could conclude that Marshall’s offer of money to M.T. in exchange for her agreement to drop the criminal charges against Marshall’s client was done with the purpose to corrupt. M.T. went to the police and reported her allegations against Castro. Offering M.T. money in exchange for her agreement to drop (or to request the prosecutor to drop) criminal charges is conduct that seeks to undermine M.T.’s honesty or integrity. Cf. State v. Hoehn, 9th Dist. Medina No. 03CA0076-M, 2004-Ohio-1419, ¶ 38-41 (affirming bribery conviction where defendant offered wife anything she wanted during divorce action if she would recant allegations of criminal charges against him); State v. Jurek, 55 Ohio App.3d 70, 75 (8th Dist.1989) (sufficient evidence to affirm bribery conviction where defendant offered victim money in exchange for testimony that she would like to drop pending charges against defendant’s client). Therefore, the evidence is sufficient to prove that Marshall acted with purpose to corrupt.
b. The Bruner Telephone Call
{¶64} Here, there was evidence that Marshall offered M.T. money if she would “say something nice” about Castro at his sentencing. Given the context, a reasonable
{¶65} Furthermore, Marshall’s offer to M.T. through Bruner could also be reasonably viewed in the context of Marshall’s previous attempt to get M.T. to drop the criminal charges against his client in exchange for money. Viewing the evidence in a light most favorable to the prosecution, as we must in a sufficiency analysis, a reasonable jury could conclude that after Marshall’s attempt to get M.T. to drop the charges failed, he tried again to improperly influence her to help his client at sentencing. Marshall knew that M.T. went to the police and reported that Castro raped her. Castro pled guilty to sexual battery. A reasonable jury could conclude that Marshall knew it was unlikely that M.T. intended to say something nice at Castro’s sentencing under these circumstances. A reasonable jury could also conclude that Marshall acted with purpose to corrupt when he sought to influence or change M.T.’s likely position at Castro’s sentencing by offering her money. Therefore, there was sufficient evidence presented to permit a reasonable trier of fact to find that the prosecution proved the essential element of bribery beyond a reasonable doubt.
E. Marshall’s Seventh Assignment of Error
{¶67} In Marshall’s seventh assignment of error, he alleges multiple instances of prosecutorial misconduct during Marshall’s trial. We find that none of the alleged instances of prosecutorial misconduct warrant reversal of Marshall’s convictions.
{¶68} The test for prosecutorial misconduct is whether the prosecutor’s remarks or questions were improper, and if so, whether they prejudicially affected substantial rights of the accused. State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192, citing State v. Hicks, 194 Ohio App.3d 743, 2011-Ohio-3578, ¶ 30 (8th Dist.). A prosecutor’s conduct during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch, 33 Ohio St.3d 19, 24 (1987). The focus of that
1. Marshall’s Arguments
{¶69} First, Marshall alleges that the prosecutor improperly cast Marshall in an unfavorable light by (1) asking Fenn if Marshall had previously represented murderers, and (2) characterizing the Blue Point lunch as a way for Marshall to “dig up dirt” about M.T. Although Marshall’s counsel objected to the question about Marshall’s representation of “murderers,” defense counsel did not object to any of the prosecutor’s questions concerning Marshall’s alleged desire to “dig up dirt” about M.T. We also note that after characterizing the Blue Point lunch as a way for Marshall to dig up dirt on M.T., the prosecutor conceded that “in fairness, that’s not unusual in the defense of a case * * *
{¶70} Next, Marshall argues that the prosecutor improperly vouched for the credibility of the sexual battery victims in closing argument. Specifically, the prosecutor told the jury that “the only heroes in this case, ladies and gentlemen, the only witnesses who I think stood up for what’s right were these victims.” (Tr. 1627.)
{¶71} Marshall did not object to this comment and has, therefore, waived all but plain error. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 181. We do not interpret the prosecutor’s comment as vouching for the victims’ credibility. The prosecutor’s comment was not related to the victims’ veracity or to any factual assertions in their testimony. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 232 (“Vouching occurs when the prosecutor implies knowledge of facts outside the record or places his or her personal credibility in issue.“). Even if the comment was improper, we do not believe that there is a reasonable probability that the comment would have affected the outcome of the trial. State v. Allen, 190 Ohio App.3d 240, 2010-Ohio-3999, ¶ 42 (8th Dist.). Moments before this comment, the trial court instructed the jury that what
{¶72} Marshall also argues that the prosecutor improperly argued in his opening statement that Fenn was fired by the new county prosecutor because the prosecutor believed that Fenn failed to report to her supervisors that she knew of a potential bribe in a criminal case. Fenn did testify that the new county prosecutor fired her after these events. Marshall argues that the prosecutor’s comment injected the personal opinions of the new prosecutor into the trial and again constituted improper vouching. Marshall’s trial counsel did not object to the comment and has forfeited all but plain error. For the reasons previously noted, this isolated comment did not deprive Marshall of a fair trial. Additionally, defense counsel stipulated before trial to these exact facts. (Tr. 43.)
{¶73} Further, Marshall argues that the prosecutor misrepresented a case to the jury during questioning of a witness. Marshall does not explain how the prosecutor misrepresented the case; nor did his counsel object to the alleged misrepresentation. Marshall has not demonstrated how this alleged misrepresentation constituted prosecutorial misconduct and deprived him of a fair trial.
{¶74} Lastly, Marshall argues that the prosecutor’s conduct complained of in his second assignment of error (offering Jonson’s expert testimony) and his fourth assignment of error (offering lay witness opinion testimony) also constituted misconduct. Having found no merit to those assignments of error, there is no basis for finding prosecutorial misconduct.
{¶75} We reject Marshall’s claims of prosecutorial misconduct and, therefore, we overrule his seventh assignment of error.
F. Marshall’s Eighth Assignment of Error
{¶76} Marshall argues in his eighth assignment of error that he received ineffective assistance of counsel. We disagree.
{¶77} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the proceeding’s result would have been different. State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 36, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus.
{¶78} The first element requires a showing that counsel made errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland at 687. It necessarily requires that when a defendant complains of the ineffectiveness of counsel’s assistance, “the defendant must show that
{¶79} In deciding a claim of ineffective assistance of counsel, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland at 689. “[T]hat is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation omitted.) Id. “Trial strategy, including debatable trial tactics, does not constitute ineffective assistance of counsel.” State v. Benitez, 8th Dist. Cuyahoga No. 98930, 2013-Ohio-2334, ¶ 31.
1. Marshall’s Arguments
{¶80} Marshall first argues that his trial counsel was ineffective for failing to seek the exclusion of Jonson’s expert testimony from this case. We disagree.
{¶81} The first mention of any expert testimony in this case (be it Jonson or Glickman, Marshall’s expert witness) appears to be in a witness disclosure list filed by Castro (who at the time was still a defendant) on October 11, 2013. In that disclosure, Glickman is identified as a potential expert witness. The state apparently received Glickman’s expert report the same day that the disclosure was filed. Subsequently, the
{¶82} Apparently, a dispute arose over the admissibility of Jonson’s expert testimony because the state was late in providing his report to the defendants. As a result, the state filed a pretrial motion addressing that dispute. According to the trial court’s November 14, 2013 order on pretrial motions, however, counsel for defendants had no objection to Jonson testifying at trial. Nor did defendant’s counsel object to his testimony during the trial.
{¶83} Marshall now claims that trial counsel should have objected to Jonson’s testimony based on relevancy. The decision not to object to Jonson’s expert testimony could have been strategic because Marshall wanted to present his own expert witness to support his contention that his conduct was a legal and ethical attempt to settle a civil claim against his client. It appears that this contention was the heart of Marshall’s entire defense. Challenging Jonson’s testimony based upon relevancy might have undermined Marshall’s ability to use Glickman to support his defense theory. Trial strategy, even if unsuccessful, does not constitute ineffective assistance of counsel. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, ¶ 83.
{¶84} Marshall next argues that trial counsel was ineffective for failing to request the jury instruction discussed in his third assignment of error and for failing to object to
{¶85} Marshall also argues that trial counsel was ineffective for not objecting to the lay witness opinion testimony that Marshall challenged in his fourth assignment of error, or to every instance of prosecutorial misconduct as detailed in his seventh assignment of error. We note that trial counsel’s failure to make objections is within the realm of trial tactics and is not a per se indicator of ineffective assistance of counsel. See State v. Wright, 8th Dist. Cuyahoga No. 92344, 2009-Ohio-5229, ¶ 45; State v. Patterson, 8th Dist. Cuyahoga No. 98127, 2012-Ohio-5511, ¶ 28. Moreover, we rejected Marshall’s argument in his fourth assignment of error that the trial court improperly admitted the lay opinion or impression testimony. Accordingly, trial counsel was not ineffective for failing to object to the properly admitted testimony. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 109. Similarly, because we found no prosecutorial misconduct that would have deprived Marshall of a fair trial or that would have affected the outcome of the trial, Marshall has not shown a reasonable probability
{¶86} Lastly, Marshall argues that if this court concludes in our analysis of his sixth assignment of error that trial counsel failed to lay the proper foundation for the admission of extrinsic evidence to prove Bruner’s prior inconsistent statements, such failure would be ineffective. As previously noted, even if Marshall’s trial counsel was ineffective for not laying a proper foundation, that failure was of no consequence because the extrinsic evidence was inadmissible under
{¶87} Marshall has not demonstrated the ineffective assistance of trial counsel. Accordingly, we overrule his eighth assignment of error.
IV. Conclusion
{¶88} Having overruled all of Marshall’s assignments of error, we affirm the judgment of the Cuyahoga County Court of Common Pleas.
{¶89} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
WILLIAM A. KLATT, JUDGE
LISA L. SADLER, P.J., and
JULIA L. DORRIAN, J., CONCUR*
*(Klatt, Sadler and Dorrian, Judges, of the Tenth Appellate District, sitting by assignment in the Eighth Appellate District.)
KEY WORDS:
Convictions affirmed; bribery convictions supported by sufficient evidence and were not against the manifest weight of the evidence where defendant offered money, a valuable thing, with the purpose to corrupt rape victim by both asking her to drop charges and asking her to say something nice about offender at sentencing in exchange for money.