[Cite as State v. Rivers,
2024-Ohio-4868.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MICHAEL A. RIVERS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case Nos. 23 MA 0124, 23 MA 0126
Criminal Appeals from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2021 CR 00789
BEFORE:
Katelyn Dickey, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Gina DeGenova, Mahoning County Prosecutor, and Atty. Edward A. Czopur,
Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Atty. Edward F. Borkowski, Jr., for Defendant-Appellant.
Dated: October 4, 2024
̶ 2 ̶
DICKEY, J.
Appellant, Michael Rivers, appeals from the November 3, 2023 judgment of
the Mahoning County Court of Common Pleas convicting him for aggravated robbery,
robbery, felonious assault, having weapons while under disability, and grand theft and
consecutively sentencing him to an aggregate prison term of 20 years (minimum) to 23
and one-half years (maximum) following a jury trial. The sentence was ordered to be
served concurrently to a sentence Appellant was serving for a conviction in Trumbull
County Court of Common Pleas, Case No. 20 CR 292.
In these consolidated appeals, Appellant raises nine assignments of error,
asserting: (1) his waiver of counsel was not knowing, intelligent, and voluntary; (2) he was
prejudiced by being “compelled” to appear at trial in jail clothing; (3) his charge of having
weapons while under disability should have been severed from the remaining charges;
(4) the admission of his prior convictions violated his right to a fair trial; (5) his convictions
were against the manifest weight of the evidence; (6) the trial court’s imposition of
consecutive sentences was contrary to law and its findings were unsupported by the
record; (7) the court erred in denying his motion for new trial; (8) his trial counsel rendered
ineffective assistance; and (9) he was denied a fair trial because of cumulative error.
Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
On December 30, 2021, Appellant was indicted by the Mahoning County
Grand Jury on five counts: count one, aggravated robbery, a felony of the first degree in
violation of R.C. 2911.01(A)(1) and (C); count two, robbery, a felony of the second degree
in violation of R.C. 2911.02(A)(2) and (B); count three, felonious assault, a felony of the
second degree in violation of R.C. 2903.11(A) and (D)(1)(a); count four, having weapons
while under disability, a felony of the third degree in violation of R.C. 2923.13(A)(2), (3),
and (B); and count five, grand theft, a felony of the third degree in violation of R.C.
2913.02(A)(1) and (B)(4). All five counts included three year firearm specifications
pursuant to R.C. 2941.145(A). Counts one, two, and three also included notice of prior
conviction specifications under R.C. 2929.13(F)(6). Appellant appeared pro se at his
Case Nos. 23 MA 0124, 23 MA 0126
̶ 3 ̶
arraignment and entered a not guilty plea. Appellant also waived his right to a speedy
trial.
A status conference was held on February 1, 2022. The trial court
discussed with Appellant the dangers of proceeding pro se and told him he would be
subject to the same rules as a lawyer. Appellant said, “I understand.” (2/1/2022 Status
Conference Tr., p. 3). The court reminded Appellant that he had the right to counsel and
indicated it was willing to appoint standby counsel. The trial judge stated:
. . . I mean, I think it’s a mistake for you to represent yourself. I understand
you might have had some disagreements with your lawyers in the past, but
I don’t want to see you prejudice yourself by trying to go up against a
seasoned prosecutor. Again, that’s your decision, that’s your choice, but
maybe you should think about it.
(Id. at p. 5).
After discussing Appellant’s speedy trial waiver, the court again advised
Appellant to consider the appointment of counsel stating, “I want you to think about
counsel though, okay?” (Id. at p. 6). Appellant nodded his head.
The matter returned for a pretrial on March 3, 2022. The trial court again
tried to convince Appellant to accept appointed counsel but he refused. The court then
tried to convince Appellant to allow it to appoint standby counsel. The court reiterated to
Appellant that he is facing “very serious charges” and if convicted, “a very long time in
prison.” (3/3/2022 Pretrial Tr., p. 7). Nevertheless, Appellant remained steadfast in his
choice to proceed pro se.
The matter returned for another pretrial on April 6, 2022. That hearing
addressed a number of Appellant’s pro se motions and the trial court again took the
opportunity to caution Appellant about representing himself. Finally, Appellant agreed to
have counsel appointed. On April 8, 2022, the court appointed Attorney Lynn Maro to
represent Appellant moving forward in this matter. Attorney Maro represented Appellant
until August 24, 2023.
Case Nos. 23 MA 0124, 23 MA 0126
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On May 17, 2022, Appellant, through counsel, filed a motion for relief from
prejudicial joinder (weapons under disability). That motion was never ruled upon by the
trial court.
On December 22, 2022, the trial court held another pretrial. The court noted
that Appellant had been convicted by a jury in the Trumbull County case and received a
14-year prison sentence. The State offered Appellant a plea deal that would involve
recommending a prison term served concurrently to the Trumbull County case. Appellant
declined the offer and wanted to proceed to trial.
On July 31, 2023, Appellant sent a letter to the trial court indicating he
wanted to revert to self-representation. At the pretrial on August 24, 2023, Appellant
again asserted his right to represent himself. The court discussed with Appellant that he
had just done a criminal trial pro se in Trumbull County and lost. Nevertheless, Appellant
said he wanted to proceed pro se. However, the trial judge stated, “I’m going to have
somebody standby during your trial so you can consult with if there’s an evidentiary issue.”
(8/24/2023 Pretrial Tr., p. 5).
The parties also discussed a recent offer that Appellant rejected in which
his sentence in this matter would have run concurrently to his sentence in the Trumbull
County case and would result in him serving no prison time beyond the sentence in that
other case. Appellant indicated he understood the offer and the difference between
concurrent and consecutive sentences as well as the fact that the offer would allow him
to enter an Alford plea. The court also noted the trial date of October 23, 2023 was firm
and going forward.
On August 28, 2023, the trial court granted Appellant’s request of self-representation after finding his waiver of court appointed counsel was knowing, intelligent,
and voluntary. On September 1, 2023, Appellant filed a pro se motion to continue the
jury trial which was overruled by the trial court.
Appellant’s decision to proceed pro se was addressed again at a pretrial on
September 11, 2023. The trial court and the State discussed the charges and possible
sentences with Appellant. Appellant again indicated he understood the terms of the deal
and rejected the plea offer. Appellant also signed a written waiver of his right to counsel
that was filed that same date.
Case Nos. 23 MA 0124, 23 MA 0126
̶ 5 ̶
Another pretrial was held on September 20, 2023. Once again, Appellant
rejected the plea offer and asserted he wished to proceed pro se. The next day, Appellant
filed another motion to continue the jury trial which was overruled by the trial court. At the
final pretrial on October 20, 2023, the trial court appointed standby counsel.
A jury trial was held on October 23, 2023. The trial court again discussed
the risks of pro se representation and standby counsel was present.
A.R. testified for the State that she first met Appellant through a mutual
friend, Heather Weir, and had known Appellant for about eight or nine years. Weir and
Appellant were in a prior romantic relationship and share a child. A.R. began a romantic
relationship with Weir toward the end of 2019 and Appellant was unhappy that they were
a couple.
On May 4, 2021, A.R. and Weir were taking a trip to Las Vegas and planned
to leave from A.R.’s house in Austintown. While they were loading luggage in their car,
Appellant came from the back of the vehicle and attacked A.R. Appellant struck A.R. with
a handgun, as well as his fist, before kicking her while she was on the ground. Appellant
also pointed his gun at A.R. while she was on the ground.
A.R. had a firearm of her own in the car which she attempted to retrieve in
order to defend herself. A.R.’s firearm was legally purchased, Serial No. 380506284.
Appellant wrestled A.R.’s gun from her possession before running off. A.R. later
discovered the magazine for her gun in her backyard. A.R. and Weir called 911. The
911 video recording was played for the jury. (State’s Exhibit 1). Stephen Sinn, dispatch
supervisor at Austintown Police Department (“APD”), testified for the State that the video
recording accurately recited the 911 calls. Anthony Morucci, an officer at APD, testified
for the State that he took the initial report, interviewed A.R. and Weir, and photographed
A.R.’s injuries at the scene. (State’s Exhibit 4).
An ambulance transported A.R. to the hospital. Luis Marconcini, a resident
physician at Mercy Health, treated A.R. (described as an “assault victim.”) (10/23/2023
Jury Trial Tr., p. 316). Dr. Marconcini testified for the State that A.R. had lacerations to
her head due to being hit with a handgun and also experienced pain to her neck and
hands. The doctor treated A.R.’s injuries and gave her stitches.
Case Nos. 23 MA 0124, 23 MA 0126
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Weir testified for the State that she told Appellant that she and A.R. were
going to Las Vegas to celebrate A.R.’s birthday. Appellant showed up at Weir’s place of
employment two days before the scheduled trip telling her he did not want her to go. Weir
said Appellant did not approve of her relationship with A.R. On the date of the incident,
while Weir and A.R. were loading luggage in the car, Appellant came running from the
side of the house and began hitting A.R. with a gun. Weir saw A.R. try to get her gun
while Appellant was beating her. Appellant pointed his gun at A.R. Appellant got
possession of A.R.’s gun and ran to the back of the house.
Before Appellant concluded his cross-examination of Weir, he asked the
trial court to appoint standby counsel and the court granted his request. Defense counsel
did not ask additional questions of Weir and the State called its next witness.
Douglas Scharsu, a detective at Youngstown Police Department (“YPD”),
testified for the State that he first met A.R. in the hospital emergency room following her
attack. A.R. indicated that Appellant had taken her firearm and provided the serial number
to the detective. Detective Scharsu revealed Appellant was under indictment at the time
of the offense for a case in Trumbull County. The detective further identified Appellant’s
other prior felony convictions to establish he was under disability at the time of the offense.
Defense counsel stipulated that State’s Exhibits 41-46 were each authentic records
reflecting Appellant’s prior felony convictions.
At the conclusion of the State’s case, Appellant moved for an acquittal
pursuant to Crim.R. 29 which was overruled by the trial court.
Before Appellant took the stand, the trial court advised him that he had a
right not to testify. Appellant said he understood his right but wanted to testify
nonetheless.
Appellant began his testimony by attempting to use his prior convictions to
his benefit. Appellant revealed responsibility for his actions by entering guilty pleas in his
prior cases. Appellant was at A.R.’s house on the day at issue as alleged. Appellant was
afraid Weir was going to take his daughter away. Appellant said he thought A.R. was
going to shoot him so he hit her on the side of her head. Appellant said they fell to the
ground wrestling for the gun when he hit A.R.’s head a second time. Appellant
Case Nos. 23 MA 0124, 23 MA 0126
̶ 7 ̶
remembered “taking something” from A.R. and that she took off running. (Id. at p. 450).
Appellant then clarified he did take A.R.’s gun and threw it as he was running off.
On cross-examination, Appellant admitted he caused A.R.’s injuries.
Appellant admitted he was not invited and was not welcomed at A.R.’s home. Appellant
said he parked his car down the street from A.R.’s house so that A.R. and Weir would not
know he was coming. When asked if he did something wrong that day, Appellant stated,
“Yeah. I didn’t have a choice; did I?” (Id. at p. 458). Appellant brought a BB gun with him
and admitted to hitting A.R. with it.
Appellant admitted that at the time of his offenses, he was under indictment
in Trumbull County for burglarizing Weir’s house and said that A.R. was a witness in that
matter. Appellant was angry with A.R. because she wrote a statement against him in his
Trumbull County case that he feared would have him put in jail. Following Appellant’s
testimony, the defense rested.
Appellant renewed his motion for acquittal which was overruled by the trial
court.
The jury found Appellant guilty on all counts as charged in the indictment.
On November 2, 2023, Appellant, through appointed counsel, filed a
Crim.R. 33 motion for new trial and a Crim.R. 29(C) motion for acquittal during the
sentencing hearing. The trial court denied Appellant’s motions. With respect to the
Crim.R. 33 motion, the trial court stated Appellant “never made a motion to separate the
cases and to keep the weapons under disability case from the jury hearing it” and “it was
one of the elements of the offense anyway.” (11/2/2023 Sentencing Hearing Tr., p. 7-8).
On November 3, 2023, the trial court imposed the following sentence: count
one, aggravated robbery, a felony of the first degree, seven to ten and one-half years plus
three years on the gun specification; count two, robbery, a felony of the second degree,
merged with count one; count three, felonious assault, a felony of the second degree, four
years plus three years on the gun specification; count four, having weapons while under
disability, a felony of the third degree, 36 months plus three years on the gun specification;
and count five, grand theft, a felony of the third degree, merged with count one. The court
ordered the prison terms in counts one, three, and four to be served consecutively, for an
aggregate term of 20 to 23 and one-half years in prison, concurrent with Appellant’s
Case Nos. 23 MA 0124, 23 MA 0126
̶ 8 ̶
Trumbull County sentence. The court granted Appellant 344 days of jail-time credit and
notified him that his sentence includes a mandatory period of post-release control up to
five years but not less than two years.
Appellant filed two appeals, Case Nos. 2023 MA 0124 and 2023 MA 0126,
which this court consolidated, and raises nine assignments of error.
ASSIGNMENT OF ERROR NO. 1
APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY WAIVE HIS RIGHT TO COUNSEL.
In his first assignment of error, Appellant argues his waiver of counsel was
not knowing, intelligent, and voluntary.
The Sixth Amendment, as made applicable to the states by the
Fourteenth Amendment, guarantees that a defendant in a state criminal trial
has an independent constitutional right of self-representation and that he
may proceed to defend himself without counsel when he voluntarily, and
knowingly and intelligently elects to do so.
State v. St. Thomas, 2024-Ohio-2568, ¶ 17 (7th Dist.), quoting State v. Gibson,
45 Ohio
St.2d 366 (1976), paragraph one of the syllabus, citing Faretta v. California,
422 U.S. 806
(1975).
To establish an effective waiver of the right to counsel, the trial court
must make sufficient inquiry to determine whether the defendant fully
understands and intelligently relinquishes that right. State v. Gibson, 45
Ohio St.2d 366,
345 N.E.2d 399 (1976), paragraph two of the syllabus.
Crim.R. 44 requires waiver of counsel to be made in open court and for a
serious offense, such as the one before us, the waiver must be in writing.
Crim.R. 44(C).
State v. Hackett, 2019-Ohio-1091, ¶ 27 (7th Dist.).
Case Nos. 23 MA 0124, 23 MA 0126
̶ 9 ̶
Furthermore, in order for the defendant to competently and
intelligently choose self-representation, he should be made aware of the
dangers and disadvantages of self-representation so that the record will
establish that “‘he knows what he is doing and his choice is made with eyes
open.’” Faretta at 835, quoting Adams v. United States ex rel. McCann,
317
U.S. 269, 279,
63 S.Ct. 236,
87 L.Ed. 268 (1942). However, there is no
single test to determine if a defendant has knowingly, intelligently, and
voluntarily waived his right to counsel. State v. Mootispaw, 4th Dist. No.
09CA33, 2010-Ohio-4772, ¶ 21. Instead, appellate courts should
independently examine the record, i.e., conduct a de novo review, to
determine whether the totality of circumstances demonstrates a knowing,
intelligent, and voluntary waiver of the right to counsel. Id.
Id. at ¶ 30.
In his brief, Appellant includes an exchange before trial where he desired to
make an oral motion to dismiss and wished to be compensated $70,000 in redemption.
The trial court overruled his motion as it had no basis in law or fact. Appellant believes
his “apparent use of ‘sovereign citizen’ phrasing and arguments is a clear indication that
he lacked the understanding and appreciation of the actual rules and procedures of the
proceedings[,]” and thus, should have been afforded leeway. (6/12/2024 Appellant’s
Brief, p. 9). We disagree.
Appellant’s contention that his waiver of counsel was not knowing,
intelligent, and voluntary belies the record. The waiver of counsel was made both in open
court and in writing. The trial court explained the dangers and disadvantages of self-representation, tried talking Appellant out of representing himself, and told him he would
be subject to the same rules as a lawyer. Appellant said, “I understand.” See (2/1/2022
Status Conference Tr., p. 3). The court reiterated to Appellant the “very serious charges”
he was facing and if convicted, “a very long time in prison.” See (3/3/2022 Pretrial Tr., p.
7). Nevertheless, Appellant remained steadfast in his choice to proceed pro se. The
court also even took the extra step in appointing standby counsel.
Case Nos. 23 MA 0124, 23 MA 0126
̶ 10 ̶
As addressed, the court discussed with Appellant the risks of pro se
representation on seven occasions: at pretrial hearings on February 1, 2022, March 3,
2022, April 6, 2022, August 24, 2023, September 11, 2023, and September 20, 2023; and
again before the jury trial commenced on October 23, 2023. The waiver of counsel was
not discussed between April 6, 2022 and August 24, 2023 because Appellant agreed to
have court appointed counsel during that time period. The trial court appointed counsel
but Appellant ended up rejecting her representation. The court initiated further by
appointing standby counsel which Appellant utilized midway through the jury trial.
In addition, Appellant had prior experience representing himself in his
Trumbull County felony case just before the instant matter. Importantly, Appellant also
signed a written waiver of his right to counsel in this case on September 11, 2023.
Based on the totality of the circumstances, the record demonstrates the trial
court made sufficient inquiries to insure that Appellant’s waiver of counsel was knowingly,
intelligently, and voluntarily made. Hackett, 2019-Ohio-1091, at ¶ 30.
Appellant’s first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
APPELLANT WAS DENIED A FAIR TRIAL BY BEING COMPELLED TO
APPEAR IN JAIL CLOTHING.
In his second assignment of error, Appellant contends he was prejudiced
by being “compelled” to appear at trial in jail clothing.
Courts have recognized a defendant may be prejudiced by
appearing at trial in jail clothes. State v. Collins, 6th Dist. No. L–05–1399,
2007-Ohio-3578, ¶ 27, citing Estelle v. Williams,
425 U.S. 501, 507 (1976).
In Estelle, the United States Supreme Court held that a defendant’s right to
due process is violated when he is compelled to stand trial before a jury
while wearing identifiable prison clothing. Id. at 512. At the same time, the
Court declined to establish a per se rule to invalidate any conviction where
the accused wore prison garb at trial. Id. See State v. Smith, 2d Dist. No.
21058, 2006-Ohio-2365, ¶ 26. In reaching its decision, the Court recognized
Case Nos. 23 MA 0124, 23 MA 0126
̶ 11 ̶
both that a defendant may be prejudiced by appearing in jail clothing and
that a defendant might purposely elect, as a matter of trial strategy, to stand
trial in such attire. Estelle at 504-505. See State v. Gandy, 1st Dist. No. C-
050804, 2006-Ohio-6282, ¶ 4. Taking into consideration these apparently
opposing principles, the relevant inquiry becomes not merely whether the
defendant appeared before the jury in prison attire, but whether he was
compelled to appear in prison garb. Estelle, 425 U.S. at 507; Gandy at ¶ 4;
and Smith at ¶ 26.
State v. Duncan, 2017-Ohio-9378, ¶ 9 (7th Dist.).
This case took nearly two years to get to trial. There is nothing in the record
indicating Appellant was compelled to wear prison clothing. Appellant admits that he
neither filed a motion to appear in civilian clothing nor objected to being present at trial in
his jail uniform. Where a defendant had ample opportunity to secure civilian clothing
before trial, but did not, the defendant cannot show he was “compelled” to stand trial in
jail clothing. State v. Hawthorne, 2016-Ohio-203, ¶ 28 (8th Dist.). Also, “‘the failure to
make an objection to the court as to being tried in such clothes, for whatever reason, is
sufficient to negate the presence of compulsion necessary to establish a constitutional
violation.’”
Duncan at ¶ 10, quoting Estelle,
425 U.S. at 512-513. Because Appellant
failed to object at trial, he has waived this argument.
Duncan at ¶ 11.
Notwithstanding waiver or any plain error, the record reveals the trial court
gave a cautionary instruction to the jury at the beginning of trial which is further indication
that no prejudice existed. See State v. R.W., 2022-Ohio-2771, ¶ 31 (8th Dist.), citing
State v. Dalmida,
2015-Ohio-4995, ¶ 21 (1st Dist.), citing State v. Fears,
86 Ohio St.3d
329, 334 (1999) (jury is presumed to follow court’s instruction to disregard defendant’s
appearance in jail clothing). Specifically, the court stated:
I do want to give you an instruction, a living instruction relative to
defendant in this action, Mr. Rivers. Mr. Rivers has a constitutional right
under the Sixth Amendment of the United States Constitution to have
counsel appointed for him. He also has a right to waive counsel,
Case Nos. 23 MA 0124, 23 MA 0126
̶ 12 ̶
representation of counsel and to represent himself, which is known as pro
se representation.
Mr. Rivers chose to waive his right to an attorney in this matter and
chooses to proceed pro se. And I want you to give him the same
consideration that you would give the State of Ohio in this matter and
disregard the fact any negative connotations of the fact that he’s sitting here
in his orange prison garment. He has a right to request civilian clothing and
he chose not to do that in this matter. And so I just want you to give him the
same consideration, I don’t want you to think negative of him. He has an
absolute right to represent himself, and I just wanted to state that right out
front.
(10/23/2023 Jury Trial Tr., p. 28-29).
Appellant’s second assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT’S
“MOTION FOR RELIEF FROM PREJUDICIAL JOINDER.”
ASSIGNMENT OF ERROR NO. 4
APPELLANT WAS DENIED A FAIR TRIAL DUE TO EXCESS EVIDENCE
OF PRIOR CONVICTIONS.
ASSIGNMENT OF ERROR NO. 7
THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR
A NEW TRIAL.
In his third assignment of error, Appellant alleges that his having weapons
while under disability charge should have been severed from the remaining charges. In
his fourth assignment of error, Appellant claims that the admission of his prior convictions
violated his right to a fair trial. In his seventh assignment of error, Appellant maintains the
Case Nos. 23 MA 0124, 23 MA 0126
̶ 13 ̶
trial court erred in denying his motion for new trial in which he argued that his having
weapons while under disability charge should have been severed from his other charges.
Because these assignments are interrelated, we will address them together for ease of
discussion.
Crim.R. 8(A), “Joinder of Offenses,” states:
Two or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the offenses
charged, whether felonies or misdemeanors or both, are of the same or
similar character, or are based on the same act or transaction, or are based
on two or more acts or transactions connected together or constituting parts
of a common scheme or plan, or are part of a course of criminal conduct.
Crim.R. 8(A).
The law generally favors joinder of multiple offenses in a single trial if the
requirements of Crim.R. 8(A) are satisfied. State v. Franklin, 62 Ohio St.3d 118, 122
(1991).
Pursuant to Crim.R. 14, it may be necessary to separate trials to prevent
prejudice. State v. Brinkley, 2005-Ohio-1507, ¶ 29. Crim.R. 14, provides, in relevant part:
“If it appears that a defendant . . . is prejudiced by a joinder of offenses . . . in an indictment
. . ., the court shall order an election or separate trial of counts . . . or provide such other
relief as justice requires.”
“When a defendant claims that joinder is improper, he must
affirmatively show that his rights have been prejudiced.” (Citations omitted.)
[State v.] Quinones[, 2005-Ohio-6576] at ¶ 38 [(11th Dist.)]. To establish
prejudice, “(t)he accused must provide the trial court with sufficient
information demonstrating that he would be deprived of the right to a fair
trial if joinder is permitted.” Id., citing State v. Lott,
51 Ohio St.3d 160, 163,
555 N.E.2d 293 (1990). “The state may negate the defendant’s claim of
prejudice by demonstrating either of the following: (1) that the evidence to
be introduced relative to one offense would be admissible in the trial on the
Case Nos. 23 MA 0124, 23 MA 0126
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other, severed offense, pursuant to Evid.R. 404(B); or (2) that, regardless
of the admissibility of such evidence, the evidence relating to each charge
is simple and direct.” Quinones at ¶ 39, citing Franklin at 122, 580 N.E.2d
1.
...
. . . [W]hen a defendant fails to renew a motion to sever at the conclusion
of the presentation of all of the evidence at trial … it is (forfeited) and the
matter is reviewed for plain error.” State v. Jackson, 11th Dist. Lake No.
2017-L-140, 2018 WL 3862920,
2018-Ohio-3241, ¶ 22, citing State v.
Appenzeller, 11th Dist. Lake No. 2006-L-258, 2008 WL 5451425, 2008-
Ohio-7005, ¶ 75-76. . . . “Plain error exists when it can be said that but for
the error, the outcome of the trial would clearly have been otherwise.”
(Citation omitted.) State v. Issa, 93 Ohio St.3d 49, 56,
752 N.E.2d 904
(2001).
State v. Patterson, 2023-Ohio-2350, ¶ 58, 60 (11th Dist.).
“Evidence is simple and direct when it is apparent that the jury was not
confused about which evidence proved which act.” State v. Smith, 2023-Ohio-3587, ¶ 47
(7th Dist.) citing Harrison at ¶ 60, citing State v. Harris,
2015-Ohio-2686, ¶ 30 (7th Dist.);
State v. Coley,
93 Ohio St.3d 253, 259 (2001).
As stated, on May 17, 2022, Appellant filed a motion to sever the having
weapons while under disability charge from the remaining charges while he was
represented by counsel. That motion was never ruled upon by the trial court and is
therefore, presumed to be denied. See State v. Panezich, 2018-Ohio-2812, ¶ 42 (7th
Dist.). Appellant did not renew the motion to sever prior to the start of trial or at the
conclusion of the State’s case and thus, fails to show plain error. See Patterson at ¶ 60.
The joinder of Appellant’s offenses did not impact his trial because the evidence as to
each crime was “simple and direct” and the trial court gave a limiting instruction
concerning his prior felony convictions. Specifically, the court stated:
Case Nos. 23 MA 0124, 23 MA 0126
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Evidence of prior conviction. Evidence was received about the
commission of a crime other than the offenses with which the defendant is
charged in his trial. That evidence was received only for the limited purpose
of providing an element of the offense of having weapons while under
disability.
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 conformity with
that character.
(10/23/2023 Jury Trial Tr., p. 550).
The State was required to introduce Appellant’s prior convictions to
establish that he was under a firearm disability. Before the foregoing instruction,
Appellant stipulated to the admissibility of each of his prior convictions. (State’s Exhibits
41-46). The trial court accepted the stipulation. In addition, overwhelming evidence
exists in the record of Appellant’s guilt, including his own admission that he beat A.R. and
took her gun. See State v. Watson, 2023-Ohio-3137, ¶ 52-53 (5th Dist.) (holding that the
existence of overwhelming evidence of guilt will prevent reversal relative to severance).
In addition, we review a trial court’s ruling on a motion for new trial for an
abuse of discretion. State v. Knight, 2024-Ohio-2176, ¶ 62 (7th Dist.), citing State v.
Schiebel,
55 Ohio St.3d 71, 76 (1990). An abuse of discretion occurs when a court
exercises its judgment “in an unwarranted way, in regard to a matter over which it has
discretionary authority.” Johnson v. Abdullah,
2021-Ohio-3304, ¶ 35.
Again, on November 2, 2023, Appellant filed a Crim.R. 33 motion for new
trial during the sentencing hearing, arguing that his having weapons while under disability
charge should have been severed from his other charges. The trial court denied the
motion, stating Appellant “never made a motion to separate the cases and to keep the
weapons under disability case from the jury hearing it” and “it was one of the elements of
the offense anyway.” (11/2/2023 Sentencing Hearing Tr., p. 7-8). However, as addressed,
Appellant did in fact file a motion to sever on May 17, 2022.
Nevertheless, the record reveals Appellant spoke about his prior court
cases through his questioning of witnesses while acting pro se. Appellant also exposed
Case Nos. 23 MA 0124, 23 MA 0126
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himself to the inclusion of those prior convictions by taking the stand. Thus, the jury heard
about Appellant’s prior convictions from Appellant himself, both as his own counsel and
as the defendant. Further, Appellant admitted to committing the acts of which he was
accused. Also, when represented, trial counsel asked Appellant about his prior
convictions, highlighting that he had entered a guilty plea in those matters.
Based on the facts presented, we find neither an abuse of discretion nor
plain error.
Appellant’s third, fourth, and seventh assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 5
APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
In his fifth assignment of error, Appellant asserts his convictions were
against the manifest weight of the evidence.
In determining whether a criminal conviction is against the manifest
weight of the evidence, an Appellate court must 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. State v. Thompkins, 78 Ohio
St.3d 380, 387,
678 N.E.2d 541 (1997); State v. Hunter,
131 Ohio St.3d 67,
2011-Ohio-6524,
960 N.E.2d 955, ¶ 119. . . .
The weight to be given to the evidence and the credibility of the
witnesses are nonetheless issues for the trier of fact. State v. DeHass, 10
Ohio St.2d 230,
227 N.E.2d 212 (1967). The trier of fact “has the best
opportunity to view the demeanor, attitude, and credibility of each witness,
something that does not translate well on the written page.” Davis v.
Flickinger, 77 Ohio St.3d 415, 418,
674 N.E.2d 1159 (1997).
State v. T.D.J.,
2018-Ohio-2766, ¶ 47-48 (7th Dist.).
Case Nos. 23 MA 0124, 23 MA 0126
̶ 17 ̶
“‘(C)ircumstantial evidence and direct evidence inherently possess the
same probative value.’” State v. Biros, 78 Ohio St.3d 426, 447 (1997), quoting State v.
Jenks,
61 Ohio St.3d 259 (1991), paragraph one of the syllabus.
Appellant attempts to downplay the incident by stressing he merely brought
a BB gun to A.R.’s house on the day at issue. However, “[a]lthough it is not a firearm, a
BB gun can be a deadly weapon if [a] BB is expelled at a sufficient rate of speed.” State
v. Johnson, 2015-Ohio-3113, ¶ 49 (5th Dist.), citing State v. Brown,
101 Ohio App.3d 784,
788 (1st Dist. 1995). “Courts agree that regardless of whether a BB or pellet is powerful
enough to cause death, a BB gun can be a deadly weapon because the body of the gun
itself can be used to bludgeon.” Johnson at ¶ 50, citing State v. Hicks,
14 Ohio App.3d
25 (8th Dist. 1984); State v. Ginley,
2009-Ohio-4701 (8th Dist.).
Again, A.R. testified for the State that she first met Appellant through Weir.
Weir and Appellant were in a prior romantic relationship and share a child. A.R. began a
romantic relationship with Weir toward the end of 2019 and Appellant was unhappy that
they were a couple.
On May 4, 2021, A.R. and Weir were taking a trip to Las Vegas and planned
to leave from A.R.’s house. While they were loading luggage in their car, Appellant came
from the back of the vehicle and attacked A.R. Appellant struck A.R. with a handgun, as
well as his fist, before kicking her while she was on the ground. Appellant also pointed
his gun at A.R. while she was on the ground.
A.R. had a firearm of her own in the car which she attempted to retrieve in
order to defend herself. A.R.’s firearm was legally purchased, Serial No. 380506284.
Appellant wrestled A.R.’s gun from her possession before running off. A.R. later
discovered the magazine for her gun in her backyard. A.R. and Weir called 911. The
911 video recording was played for the jury. (State’s Exhibit 1). A dispatch supervisor at
APD testified for the State that the video recording accurately recited the 911 calls. A
police officer at APD testified for the State that he took the initial report, interviewed A.R.
and Weir, and photographed A.R.’s injuries at the scene. (State’s Exhibit 4).
An ambulance transported A.R. to the hospital. A resident physician at
Mercy Health treated A.R., described as an “assault victim.” (10/23/2023 Jury Trial Tr.,
p. 316). The doctor testified for the State that A.R. had lacerations to her head due to
Case Nos. 23 MA 0124, 23 MA 0126
̶ 18 ̶
being hit with a handgun and also experienced pain to her neck and hands. The doctor
treated A.R.’s injuries and gave her stitches.
Weir testified for the State that she told Appellant that she and A.R. were
going to Las Vegas to celebrate A.R.’s birthday. Appellant showed up at Weir’s place of
employment two days before the scheduled trip telling her he did not want her to go. Weir
said Appellant did not approve of her relationship with A.R. On the date of the incident,
while Weir and A.R. were loading luggage in the car, Appellant came running from the
side of the house and began hitting A.R. with a gun. Weir saw A.R. try to get her gun
while Appellant was beating her. Appellant pointed his gun at A.R. Appellant got
possession of A.R.’s gun and ran to the back of the house.
A detective at YPD testified for the State that he first met A.R. in the hospital
emergency room following her attack. A.R. indicated that Appellant had taken her firearm
and provided the serial number to the detective. The detective revealed Appellant was
under indictment at the time of the offense for a case in Trumbull County. The detective
further identified Appellant’s other prior felony convictions to establish he was under
disability at the time of the offense. Defense counsel stipulated that State’s Exhibits 41-
46 were each authentic records reflecting Appellant’s prior felony convictions.
Appellant began his testimony by attempting to use his prior convictions to
his benefit. Appellant revealed responsibility for his actions by entering guilty pleas in his
prior cases. Appellant was at A.R.’s house on the day at issue as alleged. Appellant said
he thought A.R. was going to shoot him so he hit her on the side of her head. Appellant
said they fell to the ground wrestling for the gun when he hit A.R.’s head a second time.
Appellant remembered “taking something” from A.R. and that she took off running. (Id.
at p. 450). Appellant then clarified he did take A.R.’s gun and threw it as he was running
off.
On cross-examination, Appellant admitted he caused A.R.’s injuries.
Appellant admitted he was not invited and was not welcomed at A.R.’s home. Appellant
said he parked his car down the street from A.R.’s house so that A.R. and Weir would not
know he was coming. When asked if he did something wrong that day, Appellant stated,
“Yeah. I didn’t have a choice; did I?” (Id. at p. 458). Appellant brought a BB gun with him
and admitted to hitting A.R. with it.
Case Nos. 23 MA 0124, 23 MA 0126
̶ 19 ̶
Appellant admitted that at the time of his offenses, he was under indictment
in Trumbull County for burglarizing Weir’s house and that A.R. was a witness in that
matter. Appellant was angry with A.R. because she wrote a statement against him in his
Trumbull County case that he feared would have him put in jail.
In addition to Appellant’s admissions, the jury chose to believe the State’s
witnesses. DeHass, 10 Ohio St.2d at paragraph one of the syllabus. Based on the
evidence presented, as previously stated, the jury did not clearly lose its way in finding
Appellant guilty of aggravated robbery, robbery, felonious assault, having weapons while
under disability, and grand theft. Thompkins, 78 Ohio St.3d at 387.
Appellant’s fifth assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 6
APPELLANT’S SENTENCE IS CONTRARY TO LAW BECAUSE THE
RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE
SENTENCES.
In his sixth assignment of error, Appellant asserts the trial court’s imposition
of consecutive sentences was contrary to law and that its findings were unsupported by
the record.
R.C. 2929.14(C)(4) states:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
Case Nos. 23 MA 0124, 23 MA 0126
̶ 20 ̶
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
R.C. 2929.14(C)(4)(a)-(c).
In reviewing consecutive sentence arguments, the appellate court’s
standard of review is not whether the sentencing court abused its discretion;
rather, the question is whether the appellate court “clearly and convincingly
finds” (1) the record does not support the sentencing court’s findings under
R.C. 2929.14(C)(4) or (2) the sentence is otherwise contrary to law. R.C.
2953.08(G)(2)(a)-(b). A clear and convincing standard involves “a firm belief
or conviction” (and is a higher standard than a mere preponderance of the
evidence). Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954),
paragraph three of the syllabus.
“In order to impose consecutive terms of imprisonment, a trial court
is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but
it has no obligation to state reasons to support its findings.” State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 37. A sentence is
contrary to law if the sentencing court fails to make the statutory consecutive
findings. Id. (remanding for resentencing where the findings were not made
at the sentencing hearing or in the entry).
Case Nos. 23 MA 0124, 23 MA 0126
̶ 21 ̶
Pursuant to R.C. 2929.14(C)(4), a felony sentencing court can
impose consecutive sentences after finding: (1) consecutive service is
necessary to protect the public from future crime or to punish the offender;
(2) consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public;
and (3) one of the three options thereafter listed as (a) through (c). R.C.
2929.14(C)(4)(a)-(c). “(A) word-for-word recitation of the language of the
statute is not required, and as long as the reviewing court can discern that
the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences
should be upheld.” Bonnell, 140 Ohio St.3d 209 at ¶ 29.
State v. Jensen,
2023-Ohio-4717, ¶ 6-8 (7th Dist.).
The Ohio Supreme Court has recently spoken on the standard by
which an appellate court should review a trial court’s consecutive sentences
findings. In State v. Gwynne, Slip Opinion No. 2023-Ohio-3851, ¶ 5, the
Ohio Supreme Court reconsidered its prior decision in State v. Gwynne,
2022-Ohio-4607, ––– N.E.3d ––––, and held that “(t)he plain language of
R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s
consecutive-sentence findings, and the trial court’s findings must be upheld
unless those findings are clearly and convincingly not supported by the
record.”
State v. Grant, 2023-Ohio-4614, ¶ 23 (5th Dist.).
The Ohio Supreme Court has now made it clear that “an appellate court is
directed that it must have a firm belief or conviction that the record does not support the
trial court’s findings before it may increase, reduce, or otherwise modify consecutive
sentences. Gwynne, 2023-Ohio-3851, ¶ 15. “The statutory language does not require
that the appellate court have a firm belief or conviction that the record supports the
findings.”
Id. Thus, the Ohio Supreme Court in 2023 Gwynne specifically rejected the
holding in 2022 Gwynne with respect to conducting a de novo review.
Id. In short, we
Case Nos. 23 MA 0124, 23 MA 0126
̶ 22 ̶
should review the sentence imposed by the trial court and only reverse if the record does
not clearly and convincingly support the trial court’s findings. Gwynne, 2023-Ohio-3851;
Grant at ¶ 23.
At the sentencing hearing, the trial court heard from the prosecutor on
behalf of the State, defense counsel on behalf of Appellant, and Appellant.
In imposing consecutive sentences, the court found the following:
THE COURT: . . . The court has considered the record, the
statements of counsel, as well as the defendant, and the purposes and
principles of sentencing pursuant to Revised Code Section 2929.11. The
court has balanced the seriousness and recidivism factors set forth in
Revised Code Section 2929.12, and has followed guidance by degree of
felony as set forth in Revised Code Section 2929.13.
Based on your criminal history, your multiple criminal felony offenses,
the court’s going to find that a non-prison sanction would demean the
seriousness factors contained in Section 2929 of the Revised Code and a
non-prison sanction would not adequately protect the public and punish you.
...
Consecutive sentences are necessary to protect the public from
future crime or to punish the defendant. They’re not disproportionate to the
seriousness of the defendant’s conduct and the danger the defendant poses
to the public. And the offenses were committed during a course of conduct
and the harm so great or unusual that a single term does not reflect the
seriousness of the defendant’s conduct. The defendant’s criminal history
demonstrates a need to protect the public from future crime by the
defendant, and the defendant was under post-release control, specified
statutory community control or awaiting trial sentencing while he was
charged with the instant offenses.
(11/2/2023 Sentencing Hearing Tr., p. 34-35, 39-40).
Case Nos. 23 MA 0124, 23 MA 0126
̶ 23 ̶
The trial court made a similar pronouncement in its November 3, 2023
sentencing entry. The court again specifically stated:
The Court has considered the record, oral statements, as well as the
principles and purposes of sentencing under O.R.C. 2929.11, and has
balanced the seriousness and recidivism factors under R.C. 2929.12.
...
Pursuant to O.R.C. 2929.13(C), the Court finds the Defendant is not
amenable to community control and that prison is consistent with the
purposes of O.R.C. 2929.11. Further, the Court finds that a term of
imprisonment is commensurate with, and not demeaning to, the
seriousness of the offender’s conduct and its impact on the victim and
consistent with sentences for similar crimes by similar offenders.
...
Pursuant to O.R.C. 2929.14(C)(4), the Court finds that a consecutive
sentence is necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public. The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense. Finally, the
Court further finds that pursuant to O.R.C. 2929.14(C)(4)(c) the Defendant’s
criminal history demonstrates the need to protect the public from future
crime by the Defendant.
(11/3/2023 Sentencing Entry, p. 1-3).
The record in this case reflects no sentencing error. The trial court gave
due deliberation to the relevant statutory considerations and properly advised Appellant
regarding post-release control. The court considered the purposes and principles of
Case Nos. 23 MA 0124, 23 MA 0126
̶ 24 ̶
felony sentencing under R.C. 2929.11, balanced the seriousness and recidivism factors
under R.C. 2929.12, and considered the prison factors under R.C. 2929.13.
In addition, the trial court made the requisite consecutive sentence findings,
which are supported by the record, at the sentencing hearing and in its sentencing entry.
The court was aware of Appellant’s seven other prior felony offenses, including drug
possession and domestic violence, as well as his conviction in Trumbull County involving
similar crimes as those here with the same parties. The court found that consecutive
sentences are necessary to protect the public from future crime or to punish Appellant
and that consecutive sentences are not disproportionate to the seriousness of his conduct
and to the danger he poses to the public. R.C. 2929.14(C)(4). The court also found
Appellant’s history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime. R.C. 2929.14(C)(4)(c).
Accordingly, the trial court considered R.C. 2929.11, 2929.12, and 2929.13,
and its imposition of consecutive sentences pursuant to R.C. 2929.14(C)(4)(c) is
supported by the record.
Appellant’s sixth assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 8
APPELLANT’S COUNSEL WAS INEFFECTIVE.
In his eighth assignment of error, Appellant argues his trial counsel
rendered ineffective assistance.
“[T]he Sixth Amendment right to counsel exists, and is needed, in order to
protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684
(1984).
In order to demonstrate ineffective assistance of counsel, Appellant
must show that trial counsel’s performance fell below an objective standard
of reasonable representation, and prejudice arose from the deficient
performance. State v. Bradley, 42 Ohio St.3d 136, 141-143,
538 N.E.2d 373
(1989), citing Strickland [, supra]. Both prongs must be established: If
counsel’s performance was not deficient, then there is no need to review for
Case Nos. 23 MA 0124, 23 MA 0126
̶ 25 ̶
prejudice. Likewise, without prejudice, counsel’s performance need not be
considered. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52
(2000).
In Ohio, a licensed attorney is presumed to be competent. State v.
Calhoun, 86 Ohio St.3d 279, 289,
714 N.E.2d 905 (1999). In evaluating trial
counsel’s performance, appellate review is highly deferential as there is a
strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance. Bradley at 142-143, citing
Strickland
at 689. Appellate courts are not permitted to second-guess the strategic
decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558,
651
N.E.2d 965 (1995).
Even instances of debatable strategy very rarely constitute
ineffective assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1,
10,
514 N.E.2d 407 (1987). The United States Supreme Court has
recognized that there are “countless ways to provide effective assistance in
any given case.” Bradley at 142, citing
Strickland at 689.
To show prejudice, a defendant must prove his lawyer’s deficient
performance was so serious that there is a reasonable probability the result
of the proceeding would have been different. Carter at 558. “It is not enough
for the defendant to show that the errors had some conceivable effect on
the outcome of the proceeding.” Bradley, 42 Ohio St.3d 136 at fn. 1,
538
N.E.2d 373, quoting
Strickland at 693. Prejudice from defective
representation justifies reversal only where the results were unreliable or
the proceeding was fundamentally unfair as a result of the performance of
trial counsel. Carter, 72 Ohio St.3d at 558,
651 N.E.2d 965, citing Lockhart
v. Fretwell, 506 U.S. 364, 369,
113 S.Ct. 838,
122 L.Ed.2d 180 (1993).
...
Case Nos. 23 MA 0124, 23 MA 0126
̶ 26 ̶
[A]n ineffective assistance of counsel claim cannot be predicated
upon supposition. State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008-
Ohio-6634, ¶ 15. Likewise, proof of ineffective assistance of counsel
requires more than vague speculations of prejudice. Id. ¶ 55, citing State v.
Otte, 74 Ohio St.3d 555, 565,
1996-Ohio-108,
660 N.E.2d 711.
State v. Rivers,
2019-Ohio-2375, ¶ 20-23, 27 (7th Dist.).
The record reveals Appellant had trial counsel then fired her. Appellant
began the trial pro se. Appellant then “tagged in” standby counsel which he now
complains rendered ineffective assistance by admitting his prior convictions. Counsel
argued that when Appellant did something, he admitted to it, thereby asking the jury to
infer that he did not commit these crimes because he did not fully admit to them. Counsel
was aware that at least one of Appellant’s prior convictions would come in as evidence.
Counsel also heard Appellant himself discussing his other prior convictions up to that
point of the trial.
Thus, counsel’s decision to admit Appellant’s prior convictions appears to
be trial strategy, which should not be second-guessed by this court, even if the strategy
was not successful and the tactics were debatable. State v. Brazina, 2017-Ohio-7500,
¶ 28 (7th Dist.) (trial counsel’s decision to acknowledge the appellant’s prior convictions
appeared to be trial strategy which would not be second-guessed and did not amount to
ineffective assistance of counsel); State v. Jozwiak,
2020-Ohio-3694, ¶ 32 (12th Dist.)
(trial counsel’s reference to the appellant’s prior convictions amounted to trial strategy
which, even if debatable, is not a basis for finding ineffective assistance); State v.
Brauchler,
2020-Ohio-2731, ¶ 53 (5th Dist.) (trial counsel’s decision to introduce the
appellant’s prior convictions was found to be trial strategy and even though the strategy
was ultimately not successful and the tactics were debatable, they did not form a basis
for ineffective assistance).
Upon consideration, the record establishes counsel’s representation was
constitutionally effective and did not affect Appellant’s rights. Counsel’s performance was
neither deficient nor prejudicial. Appellant fails to demonstrate ineffective assistance of
counsel. See Strickland, 466 U.S. 668.
Case Nos. 23 MA 0124, 23 MA 0126
̶ 27 ̶
Appellant’s eighth assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 9
APPELLANT WAS DENIED A FAIR TRIAL DUE TO CUMULATIVE
ERROR.
In his ninth assignment of error, Appellant alleges he was denied a fair trial
because of cumulative error.
Under the doctrine of cumulative error, a conviction will be reversed
when the cumulative effect of error during a trial deprives a defendant of a
fair trial even though each of the alleged instances of error do not
individually constitute cause for reversal. State v. DeMarco, 31 Ohio St.3d
191,
509 N.E.2d 1256 (1987). An error-free, perfect trial does not exist, and
is not guaranteed by the Constitution. State v. Hill, 75 Ohio St.3d 195, 212,
661 N.E.2d 1068 (1996). In order to find cumulative error, a record must
contain multiple instances of harmless error. State v. Austin, 7th Dist.
Mahoning No. 16 MA 0068, 2019-Ohio-1185, ¶ 64. When an appellate court
determines no error has occurred, the doctrine cannot apply. State v. Lyons,
7th Dist. Jefferson No. 16 JE 0008, 93 N.E.3d 139,
2017-Ohio-4385, ¶ 46.
State v. Italiano,
2021-Ohio-1283, ¶ 35 (7th Dist.).
As we find no error in any of Appellant’s assignments of error regarding his
trial and convictions, this assignment based on cumulative error clearly has no merit. Id.
Appellant’s ninth assignment of error is without merit.
CONCLUSION
For the foregoing reasons, Appellant’s assignments of error are not welltaken. The November 3, 2023 judgment of the Mahoning County Court of Common Pleas
convicting Appellant for aggravated robbery, robbery, felonious assault, having weapons
while under disability, and grand theft and consecutively sentencing him to an aggregate
Case Nos. 23 MA 0124, 23 MA 0126
̶ 28 ̶
prison term of 20 years (minimum) to 23 and one-half years (maximum) following a jury
trial is affirmed.
Waite, J., concurs.
Hanni, J., concurs.
Case Nos. 23 MA 0124, 23 MA 0126
[Cite as State v. Rivers, 2024-Ohio-4868.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
