[Cite as State v. Ranes,
2016-Ohio-448.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
CASE NO. 12-15-03
PLAINTIFF-APPELLEE,
v.
OPINION
DAVID RANES,
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2014 CR 63
Judgment Affirmed
Date of Decision: February 8, 2016
APPEARANCES:
F. Stephen Chamberlain for Appellant
Todd C. Schroeder for Appellee
Case No. 12-15-03
WILLAMOWSKI, J.
{¶1} Defendant-appellant, David Ranes (“Ranes”), brings this appeal from
the judgment of the Common Pleas Court of Putnam County, Ohio, which entered
his conviction after a jury found him guilty of one count of engaging in a pattern
of corrupt activity, a felony of the first degree in violation of R.C. 2923.32(A)(1);
one count of illegal manufacture of methamphetamines, a felony of the second
degree in violation of R.C. 2925.04(A) & (C)(3)(a); and one count of illegal
assembly or possession of chemicals for the manufacture of drugs, a felony of the
third degree in violation of R.C. 2925.041(A) & (C). Ranes alleges that the trial
court erred in refusing to appoint new counsel for him on the morning of the trial
and in allowing the State to introduce evidence of his prior conviction. He further
contends that his trial counsel was ineffective. For the reasons that follow, we
affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} In the summer and fall of 2014, detectives of the Putnam County
Sheriff’s Office, Multi Area Narcotics Task Force, investigated a group of
individuals for their involvement in illegal manufacture of methamphetamine.
The investigation led to arrests of Ranes and multiple other individuals as co-
conspirators. A search of a residence where Ranes had previously resided resulted
in the discovery of precursors and other items used for the manufacture of
methamphetamine, all of which were linked to Ranes. Additionally, records from
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the national precursor log exchange (NPLEx) showed multiple purchases of
pseudoephedrine made by Ranes and the co-conspirators. Pseudoephedrine is a
precursor used in the manufacture of methamphetamine.
{¶3} Ranes was indicted on November 20, 2014. He pled not guilty and
received appointed counsel, Attorney William Kluge (“Attorney Kluge”). Several
of the co-conspirators agreed to testify against Ranes. Prior to trial Ranes filed a
motion in limine, requesting an order “prohibiting the introduction of evidence of
any kind about the pattern of corrupt activity, unless it is directly related to the
conduct of [the] Defendant, David Ranes.” (R. at 31.)
{¶4} On the morning of the trial, February 9, 2015, Ranes orally moved for
substitution of counsel, complaining that he was not satisfied with Attorney
Kluge’s preparation for trial. (Tr. of Proceedings at 7, Feb. 9, 2015 (“Tr.”).)
Attorney Kluge indicated that he was prepared to withdraw if the trial court
accepted Ranes’s request for new counsel. (Tr. at 6-7.) He attested, however, that
he was adequately prepared to try the case and to provide effective assistance of
counsel to Ranes. (Tr. at 8-9.) The trial court denied Ranes’s request for new
counsel and the case proceeded to trial with Attorney Kluge as trial counsel.
{¶5} Before the presentation of the evidence, the trial court heard
arguments with respect to the motion in limine. As a result of the hearing, the trial
court excluded some of the evidence about Ranes’s other criminal activity, but
allowed the introduction of a 2009 conviction for illegal assembly or possession of
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chemicals for the manufacture of drugs, for the limited purpose allowed under
Evid.R. 404(B), with accompanying limiting instruction. (Tr. of Proceedings at
122, 124, Feb. 9, 2015 (“Tr.”).)
{¶6} The jury found Ranes guilty on all three counts. (R. at 90.) After the
trial, Ranes filed a pro se motion to set aside the verdict and set a new trial date.
(R. at 93.) In his motion Ranes argued that his trial counsel was ineffective “[d]ue
to his lack of preparation and time spent with defendant, his lack of knowledge of
case and his lack of discretion in using key points brought up by defendant in
cross examination of key witnesses.” (Id.) The trial court overruled the motion.
(R. at 96.) Ranes was subsequently sentenced to eleven years on count one, eight
years on count two, and thirty-six months on count three, all to be served
consecutively. (R. at 99.)
Ranes appeals raising three assignments of error for our review, as quoted
below.
Assignments of Error
ASSIGNMENT OF ERROR ONE: THE TRIAL COURT
COMMITTED AN ERROR IN NOT GRANTING THE
DEFENDANT’S ORAL PRO SE MOTION TO REMOVE TRIAL
COUNSEL AND APPOINT SUBSTITUTE COUNSEL THE
MORNING OF THE COMMENCEMENT OF THE TRIAL
ASSIGNMENT OF ERROR TWO: THE TRIAL COURT
COMMITTED ERROR IN ALLOWING THE STATE TO
INTRODUCE EVIDENCE OF A PRIOR CONVICTION TO BE
USED IN THE STATE OF OHIO’S CASE IN CHIEF
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ASSIGNMENT OF ERROR THREE: DEFENDANT’S TRIAL
COUNSEL WAS INEFFECTIVE
First Assignment of Error—Substitution of Counsel
{¶7} Ranes alleges that the trial court erred when it denied his request for
new counsel on the morning of the trial. He relies on the criminal defendant’s
right to counsel guaranteed by the United States Constitution and the Ohio
Constitution. See State v. Combs, 3d Dist. Hancock No. 5-96-15, 1996 WL
518112, *1 (Sept. 12, 1996).
{¶8} We have previously recognized that although a criminal defendant has
an absolute right to counsel, there is no “absolute right” to counsel of one’s own
choosing. Id., citing United States v. Iles,
906 F.2d 1122, 1130 (6th Cir.1990),
and State v. Marinchek,
9 Ohio App.3d 22, 23,
457 N.E.2d 1198 (9th Dist.1983).
Therefore, an indigent defendant does not have the right to choose his counsel.
Thurston v. Maxwell,
3 Ohio St.2d 92, 93,
209 N.E.2d 204 (1965). In situations
where an issue of substitution of appointed counsel arises, an indigent defendant
must demonstrate “good cause” to warrant the change. Combs at *1. We
recognized that good cause for substitution of counsel might be “a conflict of
interest, a complete breakdown in communication, or an irreconcilable conflict
which leads to an apparently unjust verdict.”
Id. If the defendant demonstrates
good cause, the trial court has a duty to inquire whether the dissatisfaction with
counsel is justifiable and whether it requires substitution of counsel.
Id.
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An inquiry into whether the substitution of counsel is warranted
serves several important goals. This procedural protection not only
aids in determining whether “good cause” has been shown, but
serves to ease the defendant’s distrust, to preserve the integrity of the
trial process, and to foster confidence in the jury verdict.
Illes at 1131. In its inquiry the trial court must balance the defendant’s preference
as to his counsel’s choice against “the court’s interest in the integrity of the
proceedings and the public’s interest in the proper administration of justice.”
United States v. Mays, 69 F.3d 116, 121 (6th Cir.1995). “Attorneys cannot be
shed at every stage of the proceeding so as to impede that orderly administration.”
Marinchek at 23-24.
{¶9} The decision on the defendant’s request for substitution of counsel
rests within the sound discretion of the trial court. Combs at *1; N. Eagle, Inc. v.
Kosas, 8th Dist. Cuyahoga No. 92358, 2009-Ohio-4042, ¶ 32; see also State v.
Keenan,
81 Ohio St.3d 133, 137,
1998-Ohio-459,
689 N.E.2d 929 (1998)
(applying the same standard to the trial court’s disqualification of counsel).
Because abuse of discretion connotes more than an error in judgment, we will not
substitute our judgment for that of the trial court. Keenan at 137, citing State v.
Adams,
62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980). Therefore, we will only
reverse the trial court’s decision if “the trial court’s attitude [was] unreasonable,
arbitrary, or unconscionable.”
Id. “A decision is unreasonable if there is no sound
reasoning process that would support the decision.” State v. Britton, 3d Dist.
Marion No. 9-99-81,
2000-Ohio-1881,
2000 WL 765805, *4.
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Case No. 12-15-03
{¶10} In the instant case, Ranes complains that the trial court did not
sufficiently inquire into his dissatisfaction with Attorney Kluge. Our review of the
transcript does not support Ranes’s contention. The transcript indicates that the
trial court gave Ranes an opportunity to explain the reasons for his dissatisfaction
with his counsel. Ranes complained that Attorney Kluge only spent an hour with
him in the past three months and did not go over all the available evidence with
him. (Tr. at 7.) Ranes further complained that his attorney did not file any of the
motions or subpoenas that Ranes requested. (Id.) Ranes alleged that his attorney
had been too busy with other cases and his case was not getting sufficient
attention. (Id.) Based on these allegations, the trial court inquired further,
attempting to determine what motions Attorney Kluge failed to file on Ranes
behalf. Ranes responded that he had asked for a motion to suppress and one other
motion, which he could not remember at the time. (Tr. at 7-8.) The trial court
then directed its inquiry to Attorney Kluge, asking whether he could provide
effective assistance of counsel to Ranes and whether he had spent adequate time
with his client to prepare for trial. (Tr. at 8-9.) Attorney Kluge responded in the
affirmative to both questions. (Id.)
{¶11} Ranes’s allegations during the colloquy failed to show “a conflict of
interest, a complete breakdown in communication, or an irreconcilable conflict
which leads to an apparently unjust verdict.” Combs, 3d Dist. Hancock No. 5-96-
15, 1996 WL 518112, at *1. Indeed, Ranes’s statements to the trial court indicated
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that he had confidence in Attorney Kluge, but was dissatisfied with the amount of
“face time” spent in preparation of trial. (Tr. at 8.) Ranes did not demonstrate,
however, that the amount of time Attorney Kluge spent with him was too short for
adequate trial preparation. He did not provide any evidence to show that Attorney
Kluge was not prepared to provide effective assistance during his trial.
Conversely, the record shows that Attorney Kluge engaged in discovery, filed and
argued motions, and zealously represented his client at trial. He evaluated the
issues for suppression and determined that Ranes made no statements to law
enforcement. (Tr. at 123.) He further determined that Ranes lacked standing to
raise many of the issues with respect to searches and seizures in the case and
therefore, filing the motions to suppress requested by Ranes would be futile. (Id.)
{¶12} The inquiry conducted by the trial court was sufficient to satisfy the
goal of determining whether Ranes demonstrated good cause for substitution of
counsel. Due to Ranes’s failure to demonstrate good cause for substitution of
counsel on the day of the trial, the trial court’s denial of his request was not an
abuse of discretion. Accordingly, we overrule the first assignment of error.
Third Assignment of Error—Ineffective Assistance of Counsel
{¶13} We take the third assignment of error out of order due to the nature
of allegations being similar to those contained in the first assignment of error.
Ranes contends that his trial counsel was ineffective because he “had spent as little
as one hour prior to commencement of the trial with him.” (App’t Br. at 14.)
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Furthermore, Ranes complains that his counsel “failed to present any substantial
statement in mitigation of sentence.” (Id.) No prejudice is claimed in this
assignment of error.
{¶14} In order to prevail on a claim of ineffective assistance of counsel, a
criminal defendant must first show that the counsel’s performance was deficient in
that it fell “below an objective standard of reasonable representation.” State v.
Keith, 79 Ohio St.3d 514, 534,
684 N.E.2d 47 (1997). Second, the defendant must
show “that the deficient performance prejudiced the defense so as to deprive the
defendant of a fair trial.”
Id., citing Strickland v. Washington,
466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). In order to demonstrate prejudice, the
defendant must prove a reasonable probability that the result of the trial would
have been different but for his or her counsel’s errors.
Id.
{¶15} Because Ranes does not allege or demonstrate any prejudice, he fails
to sustain his burden of establishing a claim of ineffective assistance of counsel.
See State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77, ¶ 62;
State v. Robinson,
108 Ohio App.3d 428, 431,
670 N.E.2d 1077 (3d Dist.1996).
Accordingly, we overrule the third assignment of error.
Second Assignment of Error—Other Acts Evidence
{¶16} The second assignment of error challenges admissibility of the
evidence. In order for evidence to be admissible it must be relevant. Evid. R. 402.
“ ‘Relevant evidence’ means evidence having any tendency to make the existence
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Case No. 12-15-03
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Evid. R. 401. Generally,
“[a]ll relevant evidence is admissible.” Evid. R. 402. This general principle has
several exceptions, which are encompassed in Evid.R. 402, 403, and 404. State v.
Morris, 132 Ohio St.3d 337,
2012-Ohio-2407,
972 N.E.2d 528, ¶ 11-12. As
applicable to this appeal, Evid.R. 404(B) provides, in pertinent part,
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Ohio Evid. R. 404. The Ohio Supreme Court explained this rule as follows:
Evid.R. 404 codifies the common law with respect to evidence of
other acts of wrongdoing. State v. Lowe, 69 Ohio St.3d 527, 530,
634 N.E.2d 616 (1994). The rule contemplates acts that may or may
not be similar to the crime at issue. State v. Broom, 40 Ohio St.3d
277, 282,
533 N.E.2d 682 (1988). If the other act is offered for some
relevant purpose other than to show character and propensity to
commit crime, such as one of the purposes in the listing, the other
act may be admissible. Id. Another consideration permitting the
admission of certain other-acts evidence is whether the other acts
“form part of the immediate background of the alleged act which
forms the foundation of the crime charged in the indictment” and are
“inextricably related” to the crime. State v. Curry, 43 Ohio St.2d 66,
73,
330 N.E.2d 720 (1975). See also
Broom at 282, 533 N.E.2d 682.
Morris at ¶ 13. Therefore, although Evid.R. 404(B) “precludes admission of
evidence of crimes, wrongs, or acts offered to prove the character of an accused to
demonstrate conforming conduct, … it affords the trial court discretion to admit
other acts evidence for any other purpose.” State v. Williams,
134 Ohio St.3d 521,
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2012-Ohio-5695,
983 N.E.2d 1278, ¶ 2 (2012). The Supreme Court noted that the
discretion afforded by Evid.R. 404(B) to the trial court is “broad.” Id. at ¶ 17.
{¶17} The basis of this assignment of error is Ranes’s 2009 conviction
from Paulding County for illegal assembly or possession of chemicals for the
manufacture of drugs, a felony of the third degree in violation of R.C.
2925.041(A). (See State’s Ex. 19.) Through his motion in limine Ranes argued
that evidence of this prior conviction was highly prejudicial and that the State
should be precluded from introducing it at trial. (R. at 31; Tr. at 116-117, 119-
120.) At the hearing the State explained that it intended to show that certain
materials, such as pseudoephedrine and other common household items, were
purchased and assembled by Ranes. Although these materials could normally be
used for innocent purposes, they could be used for illegal manufacture of
methamphetamine. (Tr. at 118.) The State intended to use the evidence of prior
conviction to prove that Ranes engaged in purchases and assembly of the
commonly used and innocent supplies with an illegal intent of manufacturing
drugs. (Id.) The State additionally indicated that the evidence had the tendency to
establish opportunity, preparation, knowledge, “absence of mistake or accident in
the purchase of the various materials needed for the manufacture of meth,” and
modus operandi, because “the process used in the ‘09 case was the same process
used in this case.” (Tr. at 118-119.)
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{¶18} On appeal Ranes asserts that allowing the evidence was prejudicial.
In particular, he argues that the evidence had little probative value and therefore,
its probative value was substantially outweighed by the danger of unfair prejudice,
and thus, it required exclusion under Evid.R. 403(A). We must emphasize that in
order to warrant exclusion of evidence, its probative value must be “substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.” (Emphasis added.) Evid. R. 403(A). As the Ohio Supreme
Court explained:
“ ‘Exclusion on the basis of unfair prejudice involves more than a
balance of mere prejudice. If unfair prejudice simply meant
prejudice, anything adverse to a litigant’s case would be excludable
under Rule 403. Emphasis must be placed on the word “unfair.”
Unfair prejudice is that quality of evidence which might result in an
improper basis for a jury decision. Consequently, if the evidence
arouses the jury’s emotional sympathies, evokes a sense of horror, or
appeals to an instinct to punish, the evidence may be unfairly
prejudicial. Usually, although not always, unfairly prejudicial
evidence appeals to the jury’s emotions rather than intellect.’ ”
State v. Crotts, 104 Ohio St.3d 432,
2004-Ohio-6550,
820 N.E.2d 302, ¶ 24
(2004), quoting Oberlin v. Akron Gen. Med. Ctr.,
91 Ohio St.3d 169, 172, 2001-
Ohio-248,
743 N.E.2d 890 (2001).
{¶19} Nothing in the argument on appeal supports Ranes’s contention that
the probative value of the evidence at issue was substantially outweighed by the
danger of unfair prejudice. While Ranes complains about prejudice from the
admission of the evidence, he fails to point out how the evidence resulted in an
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improper basis for the jury’s decision in this case. Ranes does not demonstrate
that the limited evidence proffered by the State did anything to arouse the jury’s
emotional sympathies, evoke a sense of horror, or appeal to an instinct to punish,
as opposed to simply showing the fact that Ranes was previously convicted of
illegal assembly or possession of chemicals for the manufacture of
methamphetamine.
{¶20} This evidence had a tendency to make more probable the fact that
Ranes had the criminal intent when purchasing and collecting items such as
pseudoephedrine, and that he had the knowledge, opportunity, or preparation to
manufacture methamphetamine. Thus, the testimony proffered by the State was
relevant and fell within the permissible purposes under Evid.R. 404(B).
Furthermore, its probative value was not substantially outweighed by the danger of
unfair prejudice. Accordingly, the trial court did not abuse its discretion in
denying the motion in limine.
{¶21} Ranes also complains about the method in which the State presented
the evidence of the 2009 conviction at trial. A review of the record shows that the
evidence of the 2009 conviction was introduced through the testimony of Ranes’s
probation officer, Mike Speice (“Officer Speice”). Officer Speice testified that in
December 2008, he conducted a home visit at Ranes’s residence and observed
“drug paraphernalia within open sight.” (Tr. at 283.) He testified that
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subsequently Ranes was convicted of illegal assembly or possession of chemicals
for the manufacture of methamphetamine. (Tr. at 283-284.)
{¶22} Ranes complains that this testimony did not serve to show
knowledge, identity, or lack of mistake, but rather, it was “a clear attempt to show
a propensity on the part of the defendant to commit crimes of this type.” (App’t
Br. at 12.) Ranes, however, did not object during trial to this limited testimony by
the State and did not ask for an exclusion of the evidence on the basis that it failed
to serve the intended evidentiary purpose. Therefore, he forfeited this issue for the
purpose of the current appeal. See State v. Slagle, 65 Ohio St.3d 597, 604,
605
N.E.2d 916 (1992) (“As a general rule an appellate court will not consider an
alleged error that the complaining party did not bring to the trial court’s attention
at the time the alleged error is said to have occurred. This rule is a product of our
adversarial system of justice. ‘Its purpose is practical: to prevent the defensive trial
tactic of remaining silent on a fatal error during trial with the expectation of
demanding a reversal on appeal if the verdict is guilty.’ ”), quoting State v. Craft,
52 Ohio App.2d 1, 4,
367 N.E.2d 1221 (1st Dist.1977).
{¶23} Furthermore, the trial court gave limiting instructions to the jury,
stating,
Evidence was received about the commission of a past crime of the
defendant of illegal assembly or possession of chemicals for the
manufacture of drugs. That evidence was received only for a limited
purpose. It was not received, and you may not consider it, to prove
the character of the defendant in order to show that he acted in
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Case No. 12-15-03
conformity with that character. … you may consider that evidence
only for the purpose of deciding whether it proves his intent or
knowledge of circumstances surrounding the offense charged in
Count Three in this trial. It may not be considered for any purpose
relating to Count One and Two.
(Tr. at 566.) In Williams, 134 Ohio St.3d 521,
2012-Ohio-5695,
983 N.E.2d 1278,
at ¶ 24, the Ohio Supreme Court held that where the trial court instructed the jury
that the evidence could not be used for impermissible propensity findings, the
defendant was not unduly prejudiced.
{¶24} For the foregoing reasons, we overrule the second assignment of
error.
Conclusion
{¶25} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Common Pleas Court of Putnam County, Ohio is
therefore affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls
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