[Cite as State v. Lucas,
2021-Ohio-437.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108436
v. :
CHARLES LUCAS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: February 12, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-16-609934-A
Application for Reopening
Motion No. 540187
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant
Prosecuting Attorney, for appellee.
Charles Lucas, pro se.
FRANK D. CELEBREZZE, JR., J.:
On July 27, 2020, the applicant, Charles Lucas, pursuant to App.R.
26(B), applied to reopen this court’s judgment in State v. Lucas, 8th Dist. Cuyahoga
No. 108436, 2020-Ohio-1602, which affirmed his convictions for attempted murder
and breaking and entering. Lucas now submits that his appellate counsel should
have argued that there was no probable cause to justify a grand jury indictment, an
arrest, or prosecution because the state used perjured testimony and fraudulently
contrived misrepresentations. The state of Ohio filed its brief in opposition on
August 7, 2020, and Lucas filed a reply brief on August 18, 2020. For the following
reasons, this court denies the application.
Factual and Procedural Background
Charles Lucas and Kimberly Parker were in a tumultuous relationship
that began in 2010. Although they traveled a lot, they lived together whenever they
could and even jointly bought a house in Florida. Parker testified that Lucas was a
controlling and abusive individual, who had to know her location, her email, and her
passwords. She continued that he took offense at her interactions with other men
and that she tried to end their relationship several times.
Lucas testified that generally the relationship was good and that he
sought to look after Parker but not control her. Indeed, many of her representations
of him were lies. Nonetheless, he decided to end their relationship in 2015, because
she yelled and argued too much. However, they remained in contact because they
were working in the same industry and needed to resolve some property issues.
Parker testified that she decided to end their relationship in May
2016, when she was working in Wisconsin. To get away from Lucas, she quit her
job, changed all of her passwords, and went to her home on East 131st Street in
Garfield Heights. When she went to bed that night, she locked her bedroom door
and the door to a “sitting room” outside of her bedroom. The next morning, between
9:00 and 9:30, she heard someone trying to enter her bedroom. When she asked
who was there, she recognized Lucas’s voice. She told him to go away and called 911
to report an intruder. She told Lucas that the police were coming. Lucas tried to
force the door. Parker then remembered that Lucas kept a 9 mm handgun in the
bedroom. She retrieved it and ordered him not to come into the room. When he
continued his efforts, she shot through the door toward the ground. A bullet lodged
in a wall in the next room. Parker called 911 again and advised that she had fired the
gun. When the police arrived, they arrested her, and she was charged with
discharging a firearm in a prohibited premises and domestic violence. State v.
Parker, Garfield Heights M.C. No. CRB 1601150A.
Lucas was told that he needed to attend a July 5, 2016 pretrial hearing
in that case. Accordingly, he booked flights to come to Cleveland for the pretrial and
return to Florida on the morning of July 7. He also rented a white Ford Fusion and
booked lodging at a guesthouse in East Cleveland. Lucas testified that before the
pretrial the prosecutor informed him that he intended to dismiss the case against
Parker. Lucas further testified that this news angered him. The pretrial mainly
concerned setting another pretrial and figuring out when and how Parker could
retrieve her property from the home in Florida. Parker testified that during the
pretrial, Lucas called her a b****.
At approximately 2:40 a.m. on July 7, 2016, Parker woke up to the
smell of smoke. Upon further investigation, she noticed a hole in the window of her
bedroom and that the blinds were burnt. She called the police and remained close
to the floor until their arrival. The police noted the bullet traveled through a wall
and left remains on a towel in the bathroom. Further investigation showed that a
gun was fired at near point-blank range to the window and that the bullet travelled
only a few feet above the sleeping Parker.
East 131st Street is a north-south street that intersects McCracken, an
east-west street, at a right angle. Garfield Heights has a service garage
approximately a half-mile to the east of 131st Street. The garage’s security camera
showed a white car traveling east on McCracken and at 2:11 a.m. a man walking
westbound on McCracken. The camera further showed a man at 2:43 a.m. running
eastbound on McCracken.
Further investigation showed that Lucas left the guesthouse at 1:30
a.m. on July 7. The investigating officer then obtained a search warrant for Lucas’s
cell phone records. Those showed that he was on Lee Road in Shaker Heights at
1:50 a.m., and very near McCracken Road at 2:50, by Broadway and I-480.
In September 2016, the Cuyahoga County Grand Jury indicted Lucas
for attempted murder with a three-year firearm specification, improperly
discharging a firearm into a residence, felonious assault, breaking and entering, and
domestic violence.1 The state later dismissed the domestic violence count. A jury
1
The evidence at trial indicated that Parker’s house was enclosed by a high fence.
She testified that shortly before the shooting incident, the latch to the gate had been bent,
so the gate could not be locked.
found him guilty of the remaining counts. The trial judge merged the attempted
murder, felonious assault, and improper discharge counts and sentenced him a total
of 11 years.
Lucas’s appellate counsel argued the following: (1) Lucas was denied
due process of law and his right to counsel when his trial counsel displayed animus
toward and bias against him in a recorded conversation.2 (2) Lucas was denied due
process of law and his right to the effective assistance of counsel, when that counsel
left the courtroom during the examination of the government’s detective. (3) Lucas
was denied his right to counsel when the trial court instructed him that he could not
consult with counsel during a break in the trial. (4) The appellant’s convictions were
not supported by sufficient evidence. (5) The trial court committed plain error in
allowing testimony of alleged “other acts” of Lucas in addition to allowing evidence
that he was a controlling boyfriend. (6) Trial counsel was ineffective when he failed
to object to numerous instances of inadmissible evidence. (7) Trial counsel was
ineffective when he failed to offer a meaningful and reliable testing of the adversarial
system. (8) Lucas was denied a fair trial when a law enforcement officer was
permitted to testify as a geolocation expert using business records of the phone
company. (9) The trial court erred in allowing the prosecutor to present evidence of
2 In that conversation, Lucas’s retained counsel said that you do not want me
picking your jury, if I am unpaid.
Lucas’s prearrest silence.3 (10) The prosecutor committed prosecutorial misconduct
during closing argument when he made repeated attacks on defense counsel’s
honesty. Lucas now argues that his appellate counsel was ineffective.
Discussion of Law
An application for reopening must be granted “if there is a genuine
issue as to whether a defendant has received ineffective assistance of appellate
counsel on appeal.” App.R. 26(B)(5). The Supreme Court of Ohio has held that the
two-pronged analysis found in Strickland v. Washington, 466 U.S. 668,
104 S.Ct.
2052,
80 L.Ed.2d 674 (1984), is the appropriate standard when assessing whether
an applicant has raised a “genuine issue” as to the ineffectiveness of appellate
counsel in an App.R. 26(B) application. State v. Myers,
102 Ohio St.3d 310, 2004-
Ohio-3075,
810 N.E.2d 436.
Pursuant to Strickland, the applicant must demonstrate that
counsel’s performance was deficient and that the deficient performance prejudiced
the defense. State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989); and State
v. Reed,
74 Ohio St.3d 534,
1996-Ohio-21,
660 N.E.2d 456.
In Strickland, the United States Supreme Court ruled that judicial
scrutiny of an attorney’s work must be highly deferential. The court noted that it is
all too tempting for a defendant to second-guess his lawyer after conviction and that
it would be all too easy for a court, examining an unsuccessful defense in hindsight,
3 The investigating officer testified that after several phone conversations with
Lucas, he left Lucas a message that Lucas needed to arrange an interview to clear up some
things and that Lucas never called him back.
to conclude that a particular act or omission was deficient. Therefore, “a court must
indulge a strong presumption that 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.
Specifically, in regard to claims of ineffective assistance of appellate
counsel, the United States Supreme Court has upheld the appellate advocate’s
prerogative to decide strategy and tactics by selecting what he thinks are the most
promising arguments out of all possible contentions. The court noted:
“Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S.
745, 751-752,
103 S.Ct. 3308,
77 L.Ed.2d 987 (1983). Accordingly, the court ruled
that judges should not second-guess reasonable professional judgments and impose
on appellate counsel the duty to raise every “colorable” issue. Such rules would
disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio
reaffirmed these principles in State v. Allen,
77 Ohio St.3d 172,
1996-Ohio-366,
672
N.E.2d 638.
Moreover, even if a petitioner establishes that an error by his lawyer
was professionally unreasonable under the circumstances of the case, petitioner
must further establish prejudice: but for the unreasonable error there is a
reasonable probability that the results of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. A court need not determine whether counsel’s
performance was deficient before examining prejudice suffered by the defendant as
a result of alleged deficiencies.
Appellate review is strictly limited to the record. The Warder,
Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77,
50 N.E. 97 (1898). Thus, “a
reviewing court cannot add matter to the record that was not part of the trial court’s
proceedings and then decide the appeal on the basis of the new matter.” State v.
Ishmail,
54 Ohio St.2d 402,
377 N.E.2d 500 (1978), paragraph one of the
syllabus. “Nor can the effectiveness of appellate counsel be judged by adding new
matter to the record and then arguing that counsel should have raised these new
issues revealed by the newly added material.” State v. Moore,
93 Ohio St.3d 649,
650,
2001-Ohio-1892,
758 N.E.2d 1130. “Clearly, declining to raise claims without
record support cannot constitute ineffective assistance of appellate counsel.” State
v. Burke,
97 Ohio St.3d 55,
2002-Ohio-5310,
776 N.E.2d 79, ¶ 10.
The gravamen of Lucas’s argument is that the state presented
perjured evidence or made multiple misrepresentations that nullify its case.4 Lucas
first argues that Parker perjured herself when she testified that Lucas called her a
4 Lucas states his proposed assignment of error as follows: “Appellate counsel was
ineffective for failing to raise the issue, effectively argue or make as an error that there
was no probable cause to justify a grand jury indictment, an arrest or prosecution
violating Lucas’s Fourth Amendment Right to the U.S. Constitution by the state’s
malicious prosecution of Lucas through fraudulently contrived misrepresentation(s) of
evidence and the use of perjured testimony violating Prof. Cond. R. 3.8(A), Prof. Cond. R.
8.4, Evid. R. 403, and denying Lucas of his due process right.”
b**** during the pretrial and that he was visibly angry and that he pulled his
attorney away in an attempt to have her charged with attempted murder. For proof
that this was a lie, he proffers a youtube video of the pretrial at
https://youtube/oloAy81GT9s. A review of the video shows Lucas making a remark
under his breath, not inconsistent with calling her a b****, and then being
admonished that the comment was out of line and for which Lucas apologized.
Although the video does not show Lucas arguing with the prosecutor, he admitted
when the prosecutor told him he was going to drop the charges, he was “F’ing pissed
off.” Tr. 671-673.
At the trial, immediately after questioning Parker about the pretrial,
the prosecutor asked her if the case was dismissed, to which she said “yes.” Tr. 287.
Lucas infers from this that she perjured herself by stating her case was dismissed on
July 5, when it was not dismissed until October. A review of the transcript shows
that she truthfully answered the prosecutor’s question. Thus, in reviewing Lucas’s
argument on the pretrial, the court is not convinced that Parker perjured herself.
To the extent that Lucas’s argument is that the perjury about the pretrial was
essential to finding probable cause for the search warrant, his arrest, indictment,
and conviction, it is ill-founded.
Lucas makes additional arguments to show that the state acted in bad
faith and did not have probable cause to prosecute him. He argues that the grand
jury indicted him for attempted felony murder, but the indictment shows the charge
was for attempted murder. He argues that there was no proof to support the three-
year firearm specification. However, the bullet hole in the window, the gunshot
residue on the window, the hole in the wall, and bullet fragments found in the
bathroom leave little doubt that a firearm was used. Lucas also mentions that in
June, between the two incidents, he made a police report that Parker was harassing
and trying to extort him regarding their property issues. He alleges that sometime
during this process, the investigating officer made a racial slur. However, he does
not point to where in the record this is found. It is the appellant’s duty to point to
facts within the record that demonstrates error. Similarly, he contends that perjured
evidence was presented to the grand jury. However, he does not quote the actual
grand jury testimony, but relies on a police summary of evidence to be presented to
the grand jury. It is not the duty of the appellate court to search the record for
evidence to support the appellant’s argument. State v. Reeves, 10th Dist. Franklin
No. 09AP-493, 2010-Ohio-4018, and State v. McGuire, 9th Dist. Summit Nos.
16423 and 16431,
1994 Ohio App. LEXIS 5670 (Dec. 14, 1994).
Lucas also complains that when he reported Parker’s harassment, he
also reported that BCI had not yet processed the May shooting and that the Garfield
Heights officers did nothing. From this he argues that the officers were derelict in
their duties and showed animus against him. He also submits that because BCI was
not called, any evidence from the May shooting is inadmissible and could not
provide any basis for the search warrant against him. The court is not persuaded
that such omissions, if any, manifest animus against him.
Similarly, he notes that one of the police reports indicates that the
quickest way for him to get to McCracken Road and Parker’s house would be to
travel west on McCracken, but the video shows the car traveling east. Again he
argues a lack of probable cause. Speculation on what should have been done does
not negate the evidence presented.
Lucas also relies heavily on newly discovered evidence for proof of
perjury and malice. The “Z” exhibits he attached to the application have receiving
dates of March and June 2020, well after the appeal had been filed. For purposes of
determining ineffective assistance of appellate counsel, such exhibits are irrelevant.
Appellate counsel and the appellate courts are bound by the record. It is
inappropriate to consider on appeal matters and evidence outside of the record.
Thus, to the extent that Lucas’s arguments are dependent on material outside the
record, his arguments are ill-founded.
In determining the sufficiency of a search warrant, the judge is to
make a practical, common-sense decision, based on the statements in the affidavit
and the evidence presented, whether there is a fair probability that evidence of a
crime will be found in a particular place. Given the tumultuous relationship between
Lucas and Parker, given the fact that she shot at him through a door, given his
admitted anger on July 5, that she would not prosecuted, and given the evidence of
a gunshot into her bedroom, it is understandable that appellate counsel would
decide in the exercise of professional judgment not argue the issue of probable cause
for the search warrant. Obtaining evidence of where Lucas was in the early morning
of July 7, 2016, would help determine whether he did or did not commit the crime.
State v. Akers, 12th Dist. Butler No. CA1007-07-163, 2008-Ohio-4164.
Similarly, a grand jury indictment creates a presumption of probable
cause. State v. Thomas, 8th Dist. Cuyahoga No. 104174, 2017-Ohio-957. In the
present case, that presumption is bolstered by a jury conviction. To overcome both
presumptions by proving from the record that the indictment and the conviction
were secured by perjured evidence and a conspiracy of false and malicious
statements is an extraordinary task on appeal. This court has examined Lucas’s
arguments and his proffers and is not convinced that perjury and falsehood were the
basis for his indictment and conviction. Appellate counsel in the exercise of
professional judgment could properly decline to make Lucas’s proposed argument,
especially in view of the arguments he did make.
Accordingly, this court denies the application to reopen.
__
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
