[Cite as State v. Lemaster,
2025-Ohio-5621.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, :
: Case No. 24CA6
Plaintiff-Appellee, :
:
v. :
:
JOSEPH LEMASTER, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. : RELEASED: 12/09/2025
______________________________________________________________________
APPEARANCES:
Kyle C. Henderson, Logan, Ohio, for appellant.
James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for appellee.
______________________________________________________________________
Wilkin, J.
{¶1} This is an appeal of a Meigs County Court of Common Pleas judgment
entry in which Joseph Lemaster (“Lemaster”) was convicted of abduction and
misdemeanor assault. On appeal Lemaster raises five assignments of error,
contending that: 1) his convictions are against the manifest weight of evidence; 2) there
was insufficient evidence to support the convictions; 3) he suffered prejudice when the
prosecutor made improper comments during closing arguments; 4) he was denied due
process because of a Brady violation; and 5) he received ineffective assistance of
counsel during trial. For the following reasons we find no merit to any of these
assignments of error and affirm the trial court.
BACKGROUND
{¶2} On October 11, 2023, a Meigs County grand jury returned a two-count
indictment for an incident that occurred on July 9, 2023, alleging that Lemaster
Meigs App. No. 24CA6 2
committed two offenses in which S.S. was the victim: Count 1, abduction, in violation of
R.C. 2905.02(A)(2), a third-degree felony, and Count 2, assault, in violation of R.C.
2903.13(A), a first-degree misdemeanor.
{¶3} The parties had motion practice and several pretrial hearings were held.
In particular, on April 23, 2024, the State filed a Rule 404(B) notice indicating its
intention to use other crimes, wrongs, or acts. The specific testimony involved a phone
call that Lemaster made during the course of the indicted conduct. The State alleged
that Lemaster called P.R., the victim of a previous offense (“P.R.”), and told her that he
was going to beat S.S. like he had beat her and then kill S.S. According to the State’s
notice, this information had been provided in discovery to the defense on December 7,
2023. The State contended the purpose of this testimony was to show Lemaster’s
intent, plan, knowledge, and lack of mistake or accident in the instant case.
{¶4} Defense counsel filed an objection based on Evid.R. 401 (relevance);
Evid.R. 404(B) (not offered for non-propensity purpose); and Evid.R. 403 (the probative
value of the evidence was more prejudicial than probative). Lemaster also requested
an evidentiary hearing on the issue.
{¶5} On June 18, 2024 (the same day of, but prior to, the jury trial), the trial
court held a hearing in which the State called S.S. as a witness. At that hearing, S.S.
detailed a conversation that occurred during the indicted offenses. According to S.S.,
Lemaster called P.R. on the speaker so S.S. could hear, and demanded P.R. tell S.S.
what he did to her. Further, Lemaster stated he would do the same to S.S. Also,
according to S.S., Lemaster threatened to kill her if P.R. didn’t show up within 30
minutes. During that phone call, P.R. said that Lemaster broke her collarbone and
Meigs App. No. 24CA6 3
busted out her eye socket to the extent that she had to go to physical therapy for a
while.
{¶6} After the defense’s cross-examination of S.S., and the trial court’s asking
for further argument from the parties, the trial court found that the statements were
permissible because they were statements made during the act itself. The trial court
also ruled that both Lemaster’s and P.R.’s parts of the conversation could be admitted
through S.S.’ testimony.
{¶7} The jury trial commenced that same day and lasted until June 19, 2024.
The State called two witnesses: Anthony Woods (“Woods”), Meigs County Sheriff’s
Deputy, and S.S. The State also entered as exhibits photographs of S.S. from the
incident and body cam footage showing the interior of the camper where most of the
incident took place. The defense called no witnesses but entered several exhibits.
{¶8} Woods was the first to testify. Woods explained that, after being notified
by another deputy about a reported domestic matter, he spoke with S.S. and took S.S.’s
written statement. Woods also observed S.S. had a bitemark on her arm and a knot on
her head. Woods took pictures of these injuries. After Woods took S.S.’s statement
and pictures of the injuries, he took S.S. back to the location of the incident to retrieve
her property at her request. He and other law enforcement (Deputies Tre Wallace and
Ben Adams) wanted to ensure S.S.’s safety while she retrieved her belongings.
{¶9} During Woods’ testimony, the State inquired, as follows:
PROSECUTOR: And where exactly is this property?
WOODS: On one twenty-four (124). Uh, right out of Syracuse.
PROSECUTOR: Okay. Between Syracuse and Racine?
Meigs App. No. 24CA6 4
WOODS: Yeah. There’s like a little . . . there’s a trailer park, kind of.
PROSECUTOR: Okay.
WOODS: Camper park.
PROSECUTOR: And that’s where the camper was?
WOODS: Right.
{¶10} Woods testified also that S.S. retrieved her cell phone, a charger, and a
few clothes when he took her to the camper.
{¶11} On cross-examination, Woods testified about the extent of the
investigation, and was asked by defense counsel about any differences in S.S.’s oral
versus her written statements to Woods. Defense counsel also asked several questions
about the photographs and the extent of S.S.’s injuries. In addition, defense counsel
cross-examined about some omissions in Woods’ report. The defense cross-examined
Woods about the fact S.S. reported Lemaster would strike her “every few minutes” and
also alleged the incident occurred from 11:00 p.m. to 1:30 a.m., such that she would
have suffered multiple blows if her statement were literally true. Further, the defense
pointed out that the victim did not report the incident until over 14 hours later.
{¶12} The defense also asked Woods whether he had noticed signs of a
struggle in the camper, and Woods said if he had, he would have noted them in his
report. Further, the defense inquired as to why Woods did not call P.R. to ask her about
the incident even though S.S.’s statement to police mentioned that Lemaster had called
someone with P.R.’s first name during the incident.
{¶13} On redirect, Woods clarified that S.S.’s statement said Lemaster “would
get up angry every few minutes and hit me open-handed,” and the statement also
Meigs App. No. 24CA6 5
included S.S.’s describing the incident by saying that Lemaster “blocked me from
getting to the door to leave” which went on from about 11:00 p.m. to 1:30 a.m. Woods
also explained that a part of the report did contain an allegation of physical harm, and
the photographs documented that injury.
{¶14} S.S. testified next. According to S.S., Lemaster and she met on a dating
app and had begun dating that June prior to the incident. S.S., who lived in Urbana
(over two hours driving distance from Pomeroy), began to spend weekends at
Lemaster’s camper in Meigs County on Maple Wood Lane, after the two had gone on a
few dates.
{¶15} According to S.S., the camper was located off Maple Wood Lane, in
between Racine and Pomeroy. The State asked S.S. if the camper was located in
Meigs County, and S.S. responded, “[a]s far as I understand, yes.” S.S. also, however,
went on to explain that she had never been to Meigs County before staying with
Lemaster and did not know where the Syracuse or Racine police departments were.
{¶16} During direct examination, S.S. described a long day where she had gone
with Lemaster to the state park and also visited Lemaster’s family. The pair had not
eaten all day and decided to get dinner rather late (around 9:30 or 10:00 p.m.) at Taco
Bell. While in the drive-through at Taco Bell, Lemaster began getting upset and ranting
about S.S. putting another man before him, saying S.S. needed to “watch her tone.”
After several words were exchanged, S.S., who was driving the vehicle, decided to take
Lemaster back to the camper and she would return to her home in Urbana. But first,
S.S. wished to retrieve her belongings.
Meigs App. No. 24CA6 6
{¶17} When the couple arrived at the camper, Lemaster went inside and she sat
in the car. S.S. tried to decide whether she was going to get her things that still
remained in the camper, which consisted of a bag of clothes and her purse. She had
kept her wallet, keys, and phone in the car at that point.
{¶18} She decided she wanted to retrieve her personal items from the purse.
So, she went to the door of the camper and tried to go inside, but the door was locked.
After more words were exchanged, she asked Lemaster if he would hurt her if she went
into the camper, and he said “no, I won’t hurt you[,]” therefore, S.S. went inside.
{¶19} After S.S. went into the camper, Lemaster called P.R. on the phone so
that S.S. could hear the conversation. Lemaster told P.R. to tell S.S. what would
happen if S.S. put another man before him, and P.R. eventually responded that
Lemaster broke her collarbone and busted out her eye socket. P.R. also said she had
to go to physical therapy for some time. Also, according to S.S., Lemaster told P.R. that
P.R. better get there, because if she didn’t, he was going to “kill” S.S.
{¶20} At this point, S.S. was “shaking,” and “really, really scared.” Lemaster
closed all the blinds, locked the front door, tossed S.S.’s cell phone away from her, and
then backhanded S.S. across the face. S.S. then described several instances where
Lemaster struck her while calling her degrading names. He hit her on the top of the
head, and on the side, and she put her hands up to protect herself. He also “ripped her
hair out,” and told her to sit down if she tried to stand up.
{¶21} S.S. tried to call 911 on her watch but could not manage to do so.
Lemaster also broke the face of S.S.’s watch when she was covering her face to protect
herself. She said, “please just let me leave,” and he said, “no, you’re not fucking going
Meigs App. No. 24CA6 7
anywhere,” then struck her again. During the incident, he said he could rape her
daughter, rape her mother, kill them both, and kill her father. At some point he leaned in
very slowly and kissed her on the lips, then spit in her face. He said, “I don’t want to
hurt you,” and “it wasn’t that bad, was it?,” and she replied “no,” trying to keep calm, but
in fact she really believed he was going to kill her. And P.R. never showed up.
{¶22} Finally, Lemaster said, “get out,” and “you’re not worth it.” She left,
leaving her phone, charger, purse, and bag in the room. She had her keys in her
pocket and drove. Because she was afraid he would follow her, she drove all the way
home to Urbana and got back about 4:00 a.m. She had not slept, so she needed some
time to get her mind right and ended up telling her parents. Then she drove back to
Meigs County and reported the incident later that day. S.S. testified that she was afraid
to leave because he would kill her, he was in between her and the door the whole time,
and he had thrown her cell phone, so she could not get to it during the incident.
{¶23} During cross-examination, defense counsel tried to elicit testimony from
S.S. that she exaggerated the number of blows, or that she could have left. When
asking S.S. about the photos she herself took for law enforcement, she first testified that
she took photographs of her injuries before she went to the authorities, but then
acknowledged she could not have, because her cell phone was at the camper. S.S.
later clarified she took the photos when she returned from retrieving the phone from the
camper.
{¶24} After hearing all evidence, the jury found Lemaster guilty of both offenses.
The trial court then sentenced Lemaster to 36 months on Count 1, abduction, and 180
days as to Count 2, assault, finding that Count 2 merged with Count 1, and running the
Meigs App. No. 24CA6 8
sentences concurrent to one another. The trial court notified Lemaster of mandatory
post-release control and advised him of his right to appeal. Lemaster filed this timely
appeal, asserting five errors.
ASSIGNMENTS OF ERROR
I. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE IN VIOLATION OF APPELLANT’S RIGHT OF DUE
PROCESS AS GUARANTEED BY THE UNITED STATES AND
OHIO CONSTITUTION[S].
II. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A
CONVICTION OF APPELLANT IN VIOLATION OF HIS DUE
PROCESS RIGHTS AS GUARANTEED BY THE OHIO
CONSTITUTION AND THE UNITED STATES CONSTITUTION.
III. APPELLANT SUFFERED PREJUDICE WHEN THE PROSECUTOR
MADE MULTIPLE IMPROPER COMMENTS DURING CLOSING
ARGUMENTS.
IV. APPELLANT WAS DENIED DUE PROCESS RIGHTS
GUARANTEED BY THE OHIO CONSTITUTION AND THE UNITED
STATES CONSTITUTION DUE TO A BRADY VIOLATION.
V. APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE OHIO
CONSTITUTION AND THE UNITED STATES CONSTITUTION.
First and Second Assignments of Error
{¶25} For ease of analysis, we address Lemaster’s first and second
assignments of error in conjunction with one another. In his first assignment of error,
Lemaster primarily challenges the manifest weight of the evidence because of S.S.’s
credibility. He claims she did not exhibit injuries consistent with her statements of
abuse, gave conflicting stories about having the cell phone in her possession that night,
could not credibly testify about venue, and did not report the abuse until more than 14
hours later. He also indicates the State failed to document what items S.S. removed
Meigs App. No. 24CA6 9
from the camper the next day. In his second assignment of error, he limits the
discussion to whether the State sufficiently proved venue for the offenses.
{¶26} The State responds the jury’s verdict was not against the manifest weight
of the evidence, emphasizing the jury’s role in assessing witness credibility and the
sufficiency of the evidence, including the victim’s testimony and circumstances. For the
second assignment of error, the State argues it presented sufficient evidence to
establish venue in Meigs County, by providing specific testimony of the location of the
crime, as well as circumstantial evidence. Further, the State directs us to a defense
exhibit with what it asserts is the address of the incident.
A. Law
{¶27} In determining whether a criminal conviction is against the manifest weight
of the evidence, an appellate court reviews the entire record, weighs the evidence and
all reasonable inferences, considers the credibility of witnesses and determines whether
in resolving conflicts in the evidence, the jury 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 (1997), citing State v. Martin,
20 Ohio App.3d 172,
175 (1st Dist. 1983). “Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Const.
Co.,
54 Ohio St.2d 279 (1978), syllabus.
{¶28} The weight and credibility of evidence are to be determined by the trier of
fact. State v. Kirkland, 2014-Ohio-1966, ¶ 132. The trier of fact “is free to believe all,
part or none of the testimony of any witness,” and we “defer to the trier of fact on these
Meigs App. No. 24CA6 10
evidentiary weight and credibility issues because it is in the best position to gauge the
witnesses’ demeanor, gestures, and voice inflections, and to use these observations to
weigh their credibility.” State v. Dillard,
2014-Ohio-4974, ¶ 28 (4th Dist.), citing State v.
West,
2014-Ohio-1941, ¶ 23 (4th Dist.).
{¶29} In addition, “[a] verdict is not against the manifest weight of the evidence
because the finder of fact chose to believe the State's witnesses.” State v. Chancey,
2015-Ohio-5585, ¶ 36 (4th Dist.), citing State v. Wilson,
2014-Ohio-3182, ¶ 24 (9th
Dist.), citing State v. Martinez,
2013-Ohio-3189, ¶ 16 (9th Dist.). Moreover, “ ‘[w]hile the
jury may take note of inconsistencies and resolve or discount them accordingly, …
such inconsistences (sic.) do not render defendant's conviction against the manifest
weight or sufficiency of the evidence.’ ” State v. Corson,
2015-Ohio-5332, ¶ 31 (4th
Dist.), quoting State v. Proby,
2015-Ohio-3364, ¶ 42 (10th Dist.), citing State v. Gullick,
2014-Ohio-1642, ¶ 10 (10th Dist.).
{¶30} “When an appellate court concludes that the weight of the evidence
supports a defendant's conviction, this conclusion necessarily includes a finding that
sufficient evidence supports the conviction.” State v. Wickersham, 2015-Ohio-2756,
¶ 27 (4th Dist.), citing State v. Pollitt,
2010-Ohio-2556, ¶ 15 (4th Dist.). A determination
that a conviction is not against the manifest weight of the evidence is therefore
dispositive of the issue of whether the evidence is sufficient to sustain a conviction.
Id.,
citing State v. Lombardi,
2005-Ohio-4942, ¶ 9 (9th Dist.). Therefore, in the instant case,
we consider Lemaster’s argument that his convictions are against the manifest weight of
the evidence.
B. Analysis.
Meigs App. No. 24CA6 11
{¶31} Lemaster was charged with abduction and misdemeanor assault. As
relevant to this case, abduction, R.C. 2905.02(A(2), provides: “[n]o person, without
privilege to do so, shall knowingly … [b]y force or threat, restrain the liberty of another
person under circumstances that create a risk of physical harm to the victim or place the
other person in fear[.]” Assault, R.C. 2903.13(A), provides: “[n]o person shall knowingly
cause or attempt to cause physical harm to another or to another's unborn.”
{¶32} The State presented the testimony of the victim describing the abduction
and assault. “Testimony alone is sufficient to support an appellant’s criminal
conviction.” State v. Jarrells, 2024-Ohio-2816, ¶ 33 (4th Dist.) In addition, Deputy
Woods testified that he saw injuries on the victim, and documented the injuries with
photographs, which were entered as exhibits.
{¶33} First, Lemaster argues that S.S. did not exhibit injuries consistent with her
statements of abuse. Lemaster states that S.S. did not appear injured on the body cam
video. At trial, the defense cross-examined Woods and S.S. about her claims that
Lemaster would strike her “every few minutes” over a time period from 11:00 p.m. to
1:30 a.m. The defense’s point was that if the defendant literally struck her that often,
S.S. would have had suffered multiple blows and her injuries would have been more
severe. However, the State elicited testimony from S.S. that oftentimes she would put
up her arms to defend herself from the blows. Further, S.S. adequately explained what
she meant by that statement.
{¶34} In addition, Lemaster was charged with misdemeanor assault, and not
felonious assault, so the State only had to prove “physical harm.” R.C. 2901.01(A)(3)
defines “[p]hysical harm to persons” as “any injury, illness, or other physiological
Meigs App. No. 24CA6 12
impairment, regardless of its gravity or duration.” S.S. testified that she had a red mark
to her face, bruising to her face, a knot on top of her head, as well as a bitemark on her
arm. Woods corroborated these facts. These injuries are consistent with her testimony.
In addition, as to the abduction count, the State only had to prove the risk of physical
harm, but in fact showed that physical harm occurred.
{¶35} The defense also points out that S.S. testified during direct examination
that she had left the camper without her cell phone but instead returned the next day to
retrieve it. Woods also stated that S.S. did retrieve her cell phone the following
afternoon; however, he did not document that fact. On cross, however, S.S. stated that
she left Lemaster’s home and then went to Urbana without calling law enforcement but
then called a friend to tell him about the incident. She also testified during cross-
examination that the pictures she herself took of her injuries were taken once she
returned to Urbana, but defense counsel succeeded in having S.S. admit that could not
have been so if she had left her phone in the camper in Meigs County and retrieved it
later in the afternoon with the assistance of law enforcement. S.S. admitted that she
may have been mistaken about when she took the pictures; however, it was not clear
about how she was able to telephone her friend when she returned to Urbana if she did
not have her phone.
{¶36} Lemaster also argues that S.S. was not credible because she took over 14
hours to report the incident, despite her fear of Lemaster. The failure to report an
incident immediately does not necessarily render a person’s testimony completely
uncredible if the victim explains the delay in reporting the offense. See State v. Reed,
2024-Ohio-1363, ¶¶ 15-16 (8th Dist.) (where a victim described that incident occurred
Meigs App. No. 24CA6 13
over several hours and was ultimately able to explain why she did not leave when she
could have and why she did not report the events to the police immediately). Here,
there was ample evidence to explain why S.S., who explained she had been assaulted
until 1:30 a.m. had first returned to her home in Urbana because she was unfamiliar
with the Meigs County area, did not readily know where to report the crime late at night,
and also feared that Lemaster would pursue her.
{¶37} Overall, we would recognize that the trier of fact may accept or reject a
witness’ testimony in whole or in part.” Reed at ¶ 15, citing State v. Grimes, 2022-Ohio-
4526, ¶ 53 (8th Dist.). We emphasize that the witness’ credibility is to be determined by
the trier of fact. State v. Kirkland,
2014-Ohio-1966, ¶ 132. We may not substitute our
own judgment for that of the finder of fact when it comes to the choice between credible
witnesses and their conflicting testimony.
Reed at ¶ 15, citing State v. Williams, 2019-
Ohio-794, ¶ 28 (8th Dist.), citing State v. Awan,
22 Ohio St.3d 120, 123 (1986).
{¶38} Lemaster additionally states that the State did not meet its burden
because law enforcement failed to document any of the items S.S. removed from the
scene, such as her cell phone, purse, or overnight bag. The Eighth District considered
a similar appellate challenge in an incident involving abduction and felonious assault,
among other offenses. State v. Vega-Medina, 2024-Ohio-3409, ¶ 22-23 (8th Dist.).
There, the defendant argued that the police department failed to adequately investigate
the victims’ allegations against him because officers never went to the home where the
incident occurred to search for evidence.
Id. Also, the defendant argued that had law
enforcement gone to the residence they would have found no evidence corroborating
the victim’s testimony, including her statement that the defendant used a knife in the
Meigs App. No. 24CA6 14
commission of the offense.
Id. The Eight District held “allegations of inadequate police
investigations have no bearing on whether [the defendant’s] convictions are against the
manifest weight of evidence.” Id. at ¶ 22. The focus of a manifest weight challenge is
the credibility of the evidence presented in support of the convictions, not the absence
of evidence. Id. In the case sub judice, we therefore find that the manifest weight of
the evidence as to the elements of the offenses show that the jury did not clearly lose its
way, as some competent and credible evidence supports the jury’s verdict.
{¶39} But our review of the evidence does not stop there, as Lemaster urges us
to determine whether the State sufficiently proved venue beyond a reasonable doubt.
In addition to the elements of the offense, the State must present evidence of proper
venue in order to sustain a conviction for an offense. State v. Foreman, 2021-Ohio-
3409, ¶ 13, citing State v. Hampton, 2012-Ohio-5688 ¶ 20. “Ohio Constitution, Article I,
Section 10, ‘fixes venue or the proper place to try a criminal matter.’ ” State v.
Holloway,
2024-Ohio-3189, ¶ 30 (8th Dist.), quoting State v. Hampton,
2012-Ohio-5688,
¶ 19. Although venue is not a material element of any criminal offense … it is a fact
that must be proved at trial beyond a reasonable doubt, unless it has been waived by
the defendant.” Foreman at ¶ 13, citing State v. Headley,
6 Ohio St.3d 475, 477 (1983),
citing State v. Dickerson,
77 Ohio St. 34,
82 N.E. 969 (1907), paragraph one of the
syllabus. “The [S]tate need not prove venue ‘in express terms,’ provided that ‘all the
facts and circumstances in the case’ establish it.” Id. at ¶ 13, quoting
Headley at 477,
citing Dickerson at paragraph one of the syllabus.
{¶40} “A defendant has waived the right to challenge venue when it is raised for
the first time on appeal.” Holloway at ¶ 28, citing State v. Coley,
93 Ohio St.3d 253, 258
Meigs App. No. 24CA6 15
(2001), citing State v. Campbell,
90 Ohio St.3d 320, 336 (2000). “However, failure to
prove venue is a defect affecting a substantial right and is subject to review under the
plain error doctrine.” State v. Conrwell,
2011-Ohio-1220, ¶ 5, citing State v. Woodson
1998 WL 51606, at * 3 (Feb. 11, 1998).
{¶41} For the first time on appeal, Lemaster argues that S.S.’s testimony
regarding venue was insufficient. S.S. testified that the camper where the incident took
place was located off Maplewood Lane, in between Racine and Pomeroy, Ohio. The
State went on to ask S.S. specifically if the camper was located in Meigs County, and
S.S. responded, “[a]s far as I understand, yes.” “A victim’s testimony about the location
of the crimes is sufficient to establish proper venue.” State v. Thacker, 2020-Ohio-4620,
¶ 39 (4th Dist.), citing State v. Lancaster,
2018-Ohio-315, ¶ 56 (2d Dist.). Should that
have been the only evidence of venue, it may have been concerning because the
State’s closing arguments highlight the fact that S.S., who lived two and a half hours
away, was pretty unfamiliar with the area. However, the State presented other
circumstantial evidence to satisfy the proof of venue. The Supreme Court of Ohio has
emphasized that circumstantial evidence can be used to establish venue. State v.
Sanders,
2025-Ohio-1603, ¶ 22 (11th Dist.), citing State v. Smith,
2024-Ohio-5030, ¶ 2.
{¶42} In addition to S.S.’s testimony about the area where the incident occurred
and her understanding of the county of residence, we would note that the officer
investigating the case, Deputy Woods, was a Meigs County Sheriff’s Deputy.
Testimony regarding the jurisdiction of law enforcement can be circumstantial evidence
of venue. See State v. Thacker, ¶ 38-39 (4th Dist.). Additionally, the State specifically
asked Woods where the camper was located, and he stated that the camper was
Meigs App. No. 24CA6 16
located in a camper park right off of State Route 124, between Syracuse and Racine,
Ohio.
{¶43} Further, Evid.R. 201(B)(1) provides that a court can take judicial notice of
a fact “(1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Thus, “[a]n appellate court may take judicial notice
of its jurisdictional limits.” State v. Burkhalter, 2006-Ohio-1623, ¶ 17 (6th Dist.).
Accordingly, “[a]n appellate court has authority to take judicial notice regarding the
characteristics of the streets of the jurisdiction.” State v. Bradford,
2018-Ohio-1417, ¶
69 (8th Dist.), citing State v. Thomas,
1993 WL 9719, 3, fn. 2 (11th Dist. Jan. 8, 1993).
Additionally, courts of appeals have taken judicial notice of Google maps and satellite
image as a “source[ ] whose accuracy cannot reasonably be questioned.”
Id.
{¶44} As we previously explained:
In taking judicial notice of a geographical fact, a court may rely upon sources
like public documents and maps. State v. Elliott, 4th Dist. Ross No.
06CA2924, 2007-Ohio-2178,
2007 WL 1323434, ¶ 14; see 31 Corpus Juris
Secundum, Evidence, Section 12, at 733-735. Many courts “take judicial
notice of a Google map [or] satellite image as a ‘source[ ] whose accuracy
cannot reasonably be questioned[.]’ ” Pahls v. Thomas, 718 F.3d 1210,
1216 (10th Cir.2013), fn. 1, citing United States v. Perea-Rey,
680 F.3d
1179, 1182 (9th Cir.2012), fn. 1; see State v. Bradford,
2018-Ohio-1417,
101 N.E.3d 710, ¶ 69 (8th Dist.). However, some courts only use Google
maps to take judicial notice of the “general location” of an event or
geographical fact. See Pahls at 1216, fn. 1;
Perea-Rey at 1182, fn. 1;
Bradford at ¶ 74, fn. 6.
State v. Isaac,
2018-Ohio-5433, ¶ 13 (4th Dist.).
{¶45} The State directs us to defense Exhibit E, the police report, which shows
the address of the incident is “30122 Lot 17 Maplewood Pk Ln, Racine, OH.” In a case
addressing a similar appellate challenge, we determined that the exact street address,
Meigs App. No. 24CA6 17
apartment number and name of the apartment complex where the crimes occurred were
enough for the jury to determine the location of the offenses. State v. Conrwell, 2011-
Ohio-1220, ¶ 9 (4th Dist.). See also, State v. Lewis, 2010-Ohio-130, ¶ 10 (4th Dist.)
(testimony regarding the state route, mile marker and street name was actually more
precise than explicitly stating the name of the county where the offense occurred). This
is particularly true if the record contains evidence of the street address and the
additional proof that a specific law enforcement department responded to the location of
the offense. State v. Sanders,
2025-Ohio-1603, ¶ 24 (11th Dist.).
{¶46} Despite the exhibit showing what appears to be an exact location of the
offense, we take judicial notice that Maplewood Pk Ln appears to be an invalid address.
However, there exists a campground off State Route 124 in Racine, Ohio which is
located near 30122 Maplewood Lake Road. In this case, even without considering the
defense exhibit, we take judicial notice that the entire area of State Route 124 between
Syracuse and Racine falls with Meigs County, Ohio, and further, that the entire village of
Racine is in Meigs County. If a city spans more than one county, we would have
reached a different result. See State v. Marcum, 2018-Ohio-1135, ¶ 19 (5th Dist.)
(where appellate court observed that the City of Reynoldsburg spanned three different
counties—Licking, Fairfield, and Franklin—such that recitation of an address in
Reynoldsburg was insufficient to prove venue, resulting in plain error, and reversal of
the conviction for lack of sufficient evidence.).
{¶47} We therefore find the evidence is not against the manifest weight and
overrule Lemaster’s first assignment of error. We also find that the record contains
Meigs App. No. 24CA6 18
sufficient evidence of venue beyond a reasonable doubt such that no plain error exists
and therefore defendant’s second assignment of error has no merit.
Third Assignment of Error
{¶48} In his third assignment of error, Lemaster argues the trial court committed
plain error when the prosecutor engaged in prosecutorial misconduct by making
improper comments during closing arguments. According to Lemaster, the State shifted
the burden of proof during closing argument by requiring him to disprove the hearsay
statements of P.R. that included what he deems was other-acts evidence.
{¶49} The State in turn argues that it did not make improper comments during
closing, but instead points out the comments were made during rebuttal in response to
Lemaster’s trial counsel’s arguments. The State further opines that Lemaster has not
shown prejudice in any event.
A. Law
{¶50} “ ‘ “The test for prosecutorial misconduct is whether the conduct
complained of deprived the defendant of a fair trial.” ’ ” State v. Smith, 2024-Ohio-5168,
¶ 118 (4th Dist.), quoting State v. Benge,
2021-Ohio-152, ¶ 54 (4th Dist.), quoting State
v. Jackson,
92 Ohio St.3d 436, 441 (2001). We therefore review a claim for
prosecutorial misconduct by determining “whether the remarks were improper, and, if
so, whether they prejudicially affected the accused's substantial rights.” State v. Garrett,
2022-Ohio-4218, ¶ 144, citing State v. Smith,
14 Ohio St.3d 13,14 (1984). “ ‘To
establish prejudice, a defendant must show that a reasonable probability exists that, but
for the prosecutor's improper remarks, the result of the proceeding would have been
different.’ ” State v. Martin,
2024-Ohio-2334, ¶ 80 (4th Dist.), quoting State v. Topping,
Meigs App. No. 24CA6 19
2012-Ohio-5617, ¶ 83 (4th Dist.). The “touchstone of the analysis ‘is the fairness of the
trial, not the culpability of the prosecutor.’ ”
Garrett at ¶ 144, quoting Smith v. Phillips,
455 U.S. 209, 219 (1982). “The Constitution does not guarantee an ‘error-free, perfect
trial.’ ” Martin at ¶ 81, citing State v. Purdin,
2013-Ohio-22, ¶ 31 (4th Dist.). Thus, “[n]ot
every intemperate remark by counsel can be a basis for reversal.” Id. at ¶ 80, quoting
State v. Landrum,
53 Ohio St.3d 107, 112 (1990). Therefore, “an appellate court must
not focus on isolated comments but must examine the prosecution's closing argument in
its entirety to determine whether the prosecutor's comments prejudiced the defendant.”
Id., quoting Topping at ¶ 84, citing State v. Treesh,
90 Ohio St.3d 460, 466 (2001).
{¶51} “During closing arguments, the prosecution is generally given wide
latitude to convincingly advance its strongest arguments and positions.” Martin at ¶ 82,
quoting Topping at ¶ 83, citing State v. Powell, 2012-Ohio-2577, ¶ 149. However,
prosecutors also “ ‘must be diligent in their efforts to stay within the boundaries of
acceptable argument and must refrain from the desire to make outlandish remarks,
misstate evidence, or confuse legal concepts.’ ”
Id., quoting State v. Fears,
86 Ohio St.
3d 329, 332 (1999). Even so, “ ‘[p]rosecutorial misconduct constitutes reversible error
only in rare instances.’ ”
Id., quoting State v. Purdin,
2013-Ohio-22, ¶ 31 (4th Dist.),
quoting State v. Edgington,
2006-Ohio-3712, ¶ 18 (4th Dist.). “Accordingly, courts
ordinarily will not reverse a judgment on the basis of prosecutorial misconduct unless
‘the prosecutor's conduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” ’ ” State v. Dailey,
2018-Ohio-4315, ¶ 38 (4th Dist.),
quoting State v. Belton,
2016-Ohio-1581, ¶ 125, quoting Donnelly v. DeChristoforo,
416
U.S. 637, 643 (1974).
Meigs App. No. 24CA6 20
{¶52} Lemaster’s counsel did not object to the prosecutor’s comments during
trial. Therefore, we review only for plain error. In order to establish plain error,
Lemaster “must show that (1) there was an error or deviation from a legal rule, (2) the
error was plain and obvious, and (3) the error affected the outcome of the trial.” State v.
Mohamed, 2017-Ohio-7468, ¶ 26, citing State v. Barnes,
2002-Ohio-68, ¶ 27. “Notice of
plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53
Ohio St.2d 91, 97 (1978). Plain errors are clearly outcome-determinative. State v.
Andrews,
2024-Ohio-5023, ¶ 51 (4th Dist.), citing State v. Porter,
2012-Ohio-1526, ¶ 19
(4th Dist.) and State v. Perez,
2009-Ohio-6179, ¶ 181. “Consequently, ‘[i]n the
prosecutorial misconduct context, plain error exists only when the record clearly shows
that in the absence of the improper comments, the jury would not have convicted the
defendant.’ ”
Id. citing State v. Conley,
2009-Ohio-1848, ¶ 27 (4th Dist.).
B. Analysis
{¶53} Lemaster points to comments the State made in its closing argument
rebuttal that referenced P.R., asserting that the State tried to shift the burden of proof
onto Lemaster. It is important for us to review these comments in context. During its
first closing argument, the State explicitly said, “[t]he State’s burden is to [prove] to you
beyond a reasonable doubt that the [d]efendant committed the two crimes of assault
and abduction.” In its initial closing argument, the State referenced Lemaster’s phone
call to P.R. only to argue that the victim clearly understood by hearing the call that
Lemaster would physically beat her or even kill her if she tried to leave.
Meigs App. No. 24CA6 21
{¶54} Then, in his closing argument, Lemaster’s trial counsel (not the State)
brought up Lemaster’s conversation with P.R. that occurred during the assault and
abduction, to argue the State should have had P.R. testify at trial. Counsel for Lemaster
asked the jury:
Where is [P.R.]? Do we even know this phone call took place? [The
prosecutor] said, well Deputy Woods, he doesn’t know what P.R.’s number
is, he doesn’t . . . hey, this is law enforcement, folks. They’ve got
computers. They can hunt down anybody. P.R. lives right here in this
community. I mean, how hard would it be to track her down and say hey,
did this phone call even happen? Did you describe all of this stuff, did that
even happen? There’s another question that makes no sense.
{¶55} Only in response to the defense’s closing argument, did the prosecutor
say:
[P.R.] could’ve easily came in here and said that that didn’t happen, but she
didn’t. She didn’t come in here and say anything. She wasn’t a witness for
anybody. So, you can give that whatever weight you want to. Um, just
because she doesn’t appear, doesn’t mean that the victim’s story is
incredible.
These remarks of the prosecutor on rebuttal are the ones that Lemaster now claims
were improper.
{¶56} The State’s rebuttal argument did not imply in any way that the burden of
proof was on the defendant to prove his innocence. It was, instead, a fair comment
designed to meet the defense counsel's argument that the State omitted to call P.R.,
suggesting that P.R.’s testimony would probably benefit the defense. See, e.g., State v.
Snowden, 2019-Ohio-3006, ¶ 117 (2d Dist.) (It was not improper comment for the
prosecutor, in rebuttal, to reply to defense counsel’s intimation that the State’s failure to
offer certain testimony did not result an inference that the testimony would be favorable
to the defense). There was nothing unfair about the argument. In addition, the State’s
Meigs App. No. 24CA6 22
comment that “you can give [the fact that P.R. did not testify] whatever weight you want
to. . . just because she doesn’t appear, doesn’t mean that the victim’s story is
incredible,” is not a misstatement of the law or a change in the burden of proof. In fact,
“a conviction ‘may rest solely on the testimony of a single witness, including the victim, if
believed, and there is no requirement that a victim's testimony be corroborated to be
believed.’ ” State v. Truesdell,
2024-Ohio-5376, ¶ 59 (1st Dist.), quoting State v. Wright,
2024-Ohio-851, ¶ 32 (1st Dist.).
{¶57} Moreover, not only did the State assert its burden of proof to prove the
allegations, but the trial court also instructed the jury that the State had the burden of
proof as to all the elements of its case against the defendant. We conclude that the
challenged rebuttal argument was not unfair. The record does not support a finding
that, absent the prosecutor's comments, Lemaster’s convictions would not have
occurred.
{¶58} We therefore overrule Lemaster’s third assignment of error, as we find it to
be without merit.
Fourth Assignment of Error
{¶59} In his fourth assignment of error, Lemaster contends he was denied his
due process rights due to a Brady violation. He acknowledges that he was provided a
law enforcement body cam, the incident report, and S.S.’s written statement, but he
claims his trial counsel did not find out until the trial about S.S. taking her cell phone
from his residence when law enforcement accompanied S.S. to get her belongings. His
chief complaint is that the State failed to document what particular items S.S. retrieved
from the camper.
Meigs App. No. 24CA6 23
{¶60} The State responds it did not suppress or withhold any evidence from
Lemaster, and further that law enforcement was not required to conduct an inventory of
the property that the victim herself removed from the camper.
A. Law
{¶61} The United States Supreme Court has held “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material to guilt or to punishment, irrespective of the good faith of
the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963); see also, State v. Osie,
2014-Ohio-2966, ¶ 154 (“Brady imposes on the government an obligation to turn over
evidence that is both favorable to the defendant and material to guilt or punishment.
‘Materiality pertains to the issue of guilt or innocence, and not to the defendant's ability
to prepare for trial.’ ”). As a matter of due process, the State’s duty is “inclusive of
evidence that is exculpatory of guilt, as well as evidence that serves to impeach the
State’s witnesses.” State v. Green,
2024-Ohio-3260, ¶ 23 (1st Dist.), citing Strickler v.
Greene,
527 U.S. 263, 280-281 (1999). Whether evidence is material under Brady
considers “ ‘ “if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” ’ ” State v. Jury,
2022-Ohio-4419, ¶ 11 (6th Dist.), quoting Kyles v. Whitley,
514 U.S. 419, 433 (1995),
quoting U.S. v. Bagley,
473 U.S. 667, 682 (1985). The U.S. Supreme Court has defined
“reasonable probability” as a “probability sufficient to undermine confidence in the
outcome.”
Id., citing Bagley at 682 and State v. Johnston,
39 Ohio St.3d 48 (1989),
paragraph five of the syllabus.
Meigs App. No. 24CA6 24
{¶62} A defendant claiming a Brady violation must demonstrate: “(1) the
evidence is favorable to the defendant, because it is either exculpatory or impeaching,
(2) the evidence was either willfully or inadvertently suppressed by the [S]tate, and (3)
the defendant was prejudiced as a result.” Green at ¶ 25, citing State v. Brown, 2024-
Ohio-749, ¶ 30. A Brady claim raises issues of due process that are mixed questions of
law and fact, such that the standard of review is de novo. Id. at ¶ 22, citing State v.
Smith,
2018-Ohio-4691, ¶ 24-25 (2d Dist.).
B. Analysis
{¶63} First, Lemaster has not shown how any particular evidence was favorable
to him, because it is either exculpatory or impeaching. The tenor of Lemaster’s defense
at trial seemed to be that the credibility of S.S.’s testimony somehow hinged upon
whether she had her cell phone when she left Lemaster’s camper immediately after the
offense, or whether she later retrieved the phone with the assistance of law
enforcement. However, both Woods and S.S. testified at trial that she retrieved her cell
phone and other belongings with the assistance of law enforcement the afternoon after
the offense. As discussed above, Lemaster did cross-examine S.S. about this detail,
and she did at first mistakenly say she had taken pictures of her injuries from the
assault before she had contacted law enforcement, but she clarified that testimony with
additional questioning.
{¶64} In fact, a thorough review of the evidence shows that S.S. did not have her
cell phone until the next day. Thus, Lemaster’s argument that an inventory would have
somehow been exculpatory is sheer speculation. “Courts have consistently rejected
Brady claims that are too speculative, requiring defendants to substantiate claims that
Meigs App. No. 24CA6 25
the evidence in question was favorable and material.” State v. Armstrong, 2025-Ohio-
2609, ¶ 28 (2d Dist.), quoting State v. McGuire, 2018-Ohio-1390, ¶ 28 (8th Dist.).
Lemaster has not shown how an inventory showing the items S.S. retrieved from the
camper is evidence favorable to him, either exculpatory or impeaching to satisfy the first
prong of the Brady inquiry.
{¶65} Second, Lemaster has also not shown that the State either willfully or
inadvertently suppressed the evidence. We do not see any evidence in the record to
suggest that the sheriff’s department, the prosecutor, or any other agent of the State
had made an inventory of the personal belongings S.S. removed from the defendant’s
camper. The State cannot suppress records it does not have. “ ‘The fact that a
defendant wishes to have materials that may or may not exist and may or may not be in
the prosecutor's custody or control, does not demonstrate that such materials are Brady
materials that the prosecutor has a duty to disclose.’ ” State v. Jury, 2022-Ohio-4419 at
¶ 17, quoting State v. McClurkin,
2009-Ohio-4545, ¶ 57 (10th Dist.). “The [S]tate does
not have an obligation ‘to engage in affirmative action in gathering evidence which an
accused might feel necessary to his defense. The accused must protect his own
interests.’ ”
Id., quoting State v. Young,
2021-Ohio-2541, ¶ 103 (12th Dist.), quoting
Kettering v. Baker,
42 Ohio St.2d 351, 354 (1975). Thus, “ ‘when the [S]tate has failed
to gather exculpatory evidence or to fully investigate the allegations, the defendant may
either investigate the charge and collect the evidence himself, if such evidence is
available, or he may point out the deficiencies in the [S]tate's investigation at trial.’ ”
Id.,
quoting
Young at ¶ 103, quoting State v. Farris,
2004-Ohio-5980, ¶ 20 (2d Dist.). In
contrast, the State’s duty to affirmatively gather exculpatory evidence, extends only to
Meigs App. No. 24CA6 26
that evidence obtained by those acting on the government’s behalf. Id. at ¶ 18, citing
State v. McNeal,
2022-Ohio-2703, ¶ 22.
{¶66} Finally, as explained, Lemaster has not shown how he was prejudiced, as
the only known evidence is that the cell phone was retrieved the afternoon after the
offense, which does not appear to be exculpatory. In addition, Lemaster’s trial counsel
attempted to impeach S.S. during the trial regarding whether she did or did not have the
cell phone when she left the camper. As Woods testified, when law enforcement went
with S.S. to the camper, she grabbed a cell phone, charger, and a few clothes.
Presumably, an inventory would show these same items. We therefore find that
Lemaster’s fourth assignment of error lacks merit and hereby overrule it.
Fifth Assignment of Error
{¶67} In his fifth assignment of error, Lemaster posits that he received ineffective
assistance of counsel, pointing to five specific purported errors of counsel. First, he
claims his counsel was ineffective because counsel did not move for an acquittal at the
conclusion of the State’s case for failure to establish venue. Second, he contends his
trial counsel erred by failing to object to hearsay statements of Lemaster’s prior bad
acts. Third, he alleges his trial counsel continually elicited incriminating statements
during cross-examination. Fourth, he asserts his trial counsel should have called a
“critical witness” during the trial. Fifth, he avers that his trial counsel failed to move for a
continuance or mistrial once he became aware of “newly discoverable evidence,”
namely the testimony that S.S. obtained the cell phone from the residence over 14
hours after the incident.
Meigs App. No. 24CA6 27
{¶68} The State counters that Lemaster has failed to show his trial counsel’s
performance was deficient, mostly because these specific instances involve the
defense’s trial strategy. The State also points out that even if defense trial counsel
erred, the errors were not so egregious as to constitute prejudice.
A. Law
{¶69} “The Sixth Amendment to the United States Constitution and Article I,
Section 10 of the Ohio Constitution provide that defendants in all criminal proceedings
shall have the assistance of counsel for their defense.” State v. Hughes, 2025-Ohio-
894, ¶ 52 (4th Dist.). “The United States Supreme Court has generally interpreted this
provision to mean a criminal defendant is entitled to the ‘reasonably effective
assistance’ of counsel.” Id., citing Strickland v. Washington,
466 U.S. 668.
{¶70} To prove ineffective assistance of counsel, a petitioner “must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard
of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but
for counsel's errors, the proceeding's result would have been different.” State v. Short,
2011-Ohio-3641, ¶ 113 (4th Dist.), citing Strickland v. Washington,
466 U.S. 668, 687-
688 (1984). Therefore, “[f]ailure to establish either element is fatal to the claim.” State v.
Jones,
2008-Ohio-968, ¶ 14 (4th Dist.).
{¶71} “To establish prejudice, a defendant must demonstrate that a reasonable
probability exists that but for counsel's errors, the result of the trial would have been
different.” State v. Walters, 2014-Ohio-4966, ¶ 24 (4th Dist.), citing State v. White,
82
Ohio St.3d 15, 23 (1998). “ ‘[S]peculation is insufficient to establish the prejudice
Meigs App. No. 24CA6 28
component of an ineffective assistance of counsel claim.’ ” (Brackets original)
Id.,
quoting State v. Blackburn,
2020-Ohio-1084, ¶ 37 (4th Dist.).
{¶72} “In Ohio a properly licensed attorney is presumed competent.” State v.
Ruble, 2017-Ohio-7259, ¶ 47 (4th Dist.), citing State v. Gondor,
2006-Ohio-6679, ¶ 62.
“In order to show deficient performance, the defendant must prove that counsel's
performance fell below an objective level of reasonable representation.” State v.
Conway,
2006-Ohio-2815, ¶ 95. When considering whether trial counsel's
representation amounts to deficient performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance[.]” Strickland,
466 U.S. at 689.
B. Analysis
Failure to Object to Venue
{¶73} Specifically, Lemaster argues on appeal that his counsel should have
moved for an acquittal, pursuant to Crim.R. 29, at the conclusion of the State’s case-in-
chief for failure to prove venue. Crim.R. 29(A) grants the trial court with authority to
enter a judgment of acquittal when the State's evidence is insufficient to sustain a
conviction. State v. Kilgore, 2025-Ohio-901, ¶ 15 (5th Dist.). However, “[a] trial court
should overrule a Crim.R. 29 motion for acquittal unless, after viewing the evidence in a
light most favorable to the State, the court finds no rational finder of fact could find the
essential elements of the charge proven beyond a reasonable doubt.”
Id. citing State v.
Franklin,
2007-Ohio-4649, ¶12 (5th Dist.).
{¶74} Our discussion pertaining to the first and second assignments of error
addresses this issue. The State in this case did not fail to prove venue based on direct
Meigs App. No. 24CA6 29
and circumstantial evidence. Further, we are permitted pursuant to Evid.R. 201 to take
judicial notice of cities within our district. There was sufficient direct and circumstantial
evidence of venue to require the trial court to submit the case to the jury. Thus, the trial
court would have denied a Crim.R. 29 motion had it been made.
Failure to Object to Hearsay Statements of Lemaster’s Prior Bad Acts
{¶75} Lemaster claims his trial counsel should have objected to certain hearsay
involving prior bad acts of the defendant. He primarily focuses on the time during the
indicted incident when S.S. went inside the camper, and Lemaster called P.R. on the
phone. At trial, S.S. recounted the statements that Lemaster made during this phone
call and also recounted what P.R.’s responses were, because S.S. could hear those
responses. In essence, Lemaster told P.R. to tell S.S. what would happen if S.S. put
another man before him, and P.R. eventually responded that Lemaster broke her
collarbone and busted out her eye socket. P.R. also said she had to go to physical
therapy for some time. Also, according to S.S., Lemaster told P.R. that P.R. better get
there, because if she didn’t, he was going to “kill” S.S.
{¶76} While Lemaster characterizes these statements as “other acts” evidence,
Evid.R. 404(B) limits only the admission of other acts evidence that is “extrinsic” to the
crime charged. State v. Pettiford, 2024-Ohio-4447, ¶ 36 (4th Dist.), citing State v.
Stallworth,
2014-Ohio-4297, ¶ 37 (11th Dist.). Evid.R. 404(B) does not apply when the
acts are intrinsic, including part of the events in question.
Id. citing State v. Wainscott,
2016-Ohio-1153, ¶ 19 (12th Dist.). “ ‘When other acts are ‘inextricably intertwined’ with
[an] offense, those acts are said to be intrinsic to the alleged crime.’ ”
Id. quoting
Stallworth at ¶ 38, quoting U.S. v. Siegel,
536 F.3d 306, 316 (4th Cir. 2008). “ ‘ “Other
Meigs App. No. 24CA6 30
acts ‘are inextricably intertwined with a charged crime when they are so blended or
connected with the charged crime that proof of one incidentally involves the other,
explains the circumstances thereof, or tends logically to prove any element of the crime
charged.” ’ ” Id. at ¶ 37, quoting State v. Crowley,
2023-Ohio-1764, ¶ 21 (2d Dist.),
quoting State v. Sinclair,
2003-Ohio-3246, ¶ 35 (2d Dist.).
{¶77} Here, the conversation that Lemaster had with P.R. actually constituted
part of the offense, because it occurred contemporaneously with the incident and
showed how Lemaster threatened S.S. This conversation was part of the State’s
evidence to prove abduction in that Lemaster acted “by force or threat,” and also
showed that he placed S.S. “in fear.” This is consistent with the motion practice and
pretrial evidentiary hearing in which defense counsel objected to this evidence and
sought a ruling by the trial court as to whether it was admissible according to Evid. R.
401, 403(A) and 404(B). The trial court held that the phone conversation was
admissible because it was made during the offense. However, Lemaster’s trial counsel
did not object on the basis of hearsay, even though he requested a hearing to cross-
examine S.S. about this conversation before she testified at trial.
{¶78} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted in the statement.” Further, Evid.R. 801(D) provides that certain
statements are not hearsay. One type of statement that is not hearsay is an admission
of a party opponent, when the statement is “offered against a party,” and is the party’s
own statement. In the instant case, Lemaster’s own statements made during the
conversation with P.R. are clearly not hearsay. Evid.R. 801(D)(2)(a).
Meigs App. No. 24CA6 31
{¶79} In addition, in the instant case P.R.’s statements and responses to
Lemaster’s phone call are not hearsay for other reasons such that trial counsel may
have opted not to exercise an objection. First, the statement is not hearsay if it is not
being offered to prove the truth of the matter, but instead “to show its effect on the
listener.” See State v. Boyd, 2025-Ohio-3248, ¶ 103 (6th Dist.) (“Multiple courts have
held that text messages received on a defendant’s cell phone are not hearsay when the
messages are not offered for the truth of the matter asserted.”); State v. Thacker, 2020-
Ohio-4620, ¶ 93 (4th Dist.) (“[T]estimony which explains the actions of a witness to
whom a statement was directed, such as to explain the witnesses’ activities, is not
hearsay.”).
{¶80} Second, a statement is not hearsay if a defendant acknowledges a
statement made by another, as it may be deemed an adoptive admission. State v.
Long, 2014-Ohio-4416, ¶ 21 (11th Dist.) An adoptive admission is defined as “a
statement of which the party has manifested an adoption or belief in its truth” and is
explicitly exempted from the definition of hearsay. Evid.R. 801(D)(2)(b).
Id. “In order for
an adoptive admission to be applicable, the declarant must have made the statement in
the presence of the party against whom the statement is offered at trial. In addition, the
party must have heard and understood the statement, must have been free to disavow
it, and must have either expressly acknowledged the truth of the statement or remained
silent when a reasonable person would have denied its truthfulness.”
Id. citing State v.
Comstock,
1997 WL 531304, *5 (11th Dist. Aug. 15, 1997). This includes phone
conversations. See
Id. (a recorded telephone conversation where the defendant
Meigs App. No. 24CA6 32
acknowledged a statement made by his sister was deemed an adoptive admission and
therefore not hearsay).
{¶81} Third, P.R.’s telephone responses to Lemaster are not hearsay if the State
offers them to explain the context of S.S.’s observations and behavior during the
incident, as well as the context of Lemaster’s statements during the offense. See State
v. Young, 2013-Ohio-3418 , ¶ 21 (4th Dist.) (where out-of-court statement that a victim
told witness some of her pills were missing assisted to explain the context of the
witness’ subsequent observation and behavior); see also, State v. Crocker, 2015-Ohio-
2528, ¶ 15 (4th Dist.) (where the court explained that text messages referred to in
officer’s report were not hearsay because they gave context to defendant’s statements).
{¶82} Had defense counsel objected to S.S.’s recollection of this telephone
conversation on the basis of hearsay, it is likely that the trial court would have overruled
it. “A defense counsel’s failure to object is not ineffective assistance of counsel if the
evidence is admissible.” State v. Carter, 2018-Ohio-2238, ¶ 47 (8th Dist.). The fact
counsel challenged what it at first characterized as “other acts” evidence and requested
a hearing supports the conclusion that counsel’s decision not to argue hearsay was
based on sound strategy.
Continual Elicitation of Incriminating Statements during Cross-Examination
{¶83} Lemaster asserts that his trial counsel elicited harmful evidence during
cross-examination. It is clear throughout the trial that the defense strategy was to point
to an insufficient law enforcement investigation, and further, that S.S. was not a credible
witness. “Generally, the decision regarding which defense to pursue at trial is a matter
of trial strategy, and trial strategy decisions are not a basis of a finding of ineffective
Meigs App. No. 24CA6 33
assistance of counsel.” State v. Delong, 2025-Ohio-2432, ¶ 68, quoting State v. Craver,
2020-Ohio-5407, ¶ 29 (2d Dist.). This is true even if a better strategy is available.
Id.
citing State v. Stodgel,
2024-Ohio-5182, ¶ 46 (4th Dist.).
Failure to Call a Critical Witness
{¶84} Lemaster states his trial counsel was ineffective because he failed to call
P.R. as a defense witness. However, “the decision whether to call a witness falls within
the rubric of trial strategy and will not be second-guessed by a reviewing court.” State
v. Tumey, 2019-Ohio-219, ¶ 41, quoting State v. Pickens,
2014-Ohio-5445, ¶ 203.
Moreover, there is no evidence in the record that P.R.’s testimony would have benefited
Lemaster in any way. In fact, the evidence presented shows the opposite is probably
true. Under these circumstances, Lemaster cannot establish a reasonable probability of
a different outcome.
Failure to Move for a Continuance or Mistrial
{¶85} Lemaster also claims that he received ineffective assistance because his
trial counsel failed to move for a continuance or mistrial when he learned during trial that
the victim obtained a cell phone from Lemaster’s residence the afternoon after the
incident. Lemaster does not explain on appeal as to how this would have benefited his
case, and there is no indication in the record that a continuance would have helped. As
it was, the defense was able to point out an inconsistency in S.S.’s testimony when she
said that she took photos upon arriving in Urbana, while at the same time saying her cell
phone was left at the camper and retrieved the following afternoon.
Meigs App. No. 24CA6 34
{¶86} Despite Lemaster’s various arguments regarding ineffective assistance,
we do not see that he has established prejudice in any way. As a result, we overrule his
fifth assignment of error.
CONCLUSION
{¶87} For the foregoing reasons, we overrule all five assignments of error and
affirm the trial court’s judgment of conviction.
JUDGMENT AFFIRMED.
Meigs App. No. 24CA6 35
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
