State v. Newsome

[Cite as State v. Newsome, 2012-Ohio-6119.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 12-12-03

v.

JOSHUA LEE NEWSOME, OPINION

DEFENDANT-APPELLANT.

Appeal from Putnam County Common Pleas Court
Trial Court No. 2011 CR 72

Judgment Affirmed

Date of Decision: December 26, 2012

APPEARANCES:

Charles R. Hall, Jr. and Randy F. Hoffman for Appellant

Todd C. Schroeder for Appellee
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ROGERS, J.

{¶1} Defendant-Appellant, Joshua Newsome, appeals the judgment of the

Court of Common Pleas of Putnam County finding him guilty of robbery and

sentencing him to an eight-year prison term. On appeal, Newsome contends that

the verdict was against the manifest weight of the evidence, that the trial court

committed numerous evidentiary errors, that he was denied effective assistance of

counsel, that the trial court erred when it sentenced him to the maximum term of

imprisonment, and that the trial court erred when it informed him of the

consequences of violating post-release control. Based on the following, we affirm

the trial court’s judgment.

{¶2} On October 11, 2011, the Putnam County Grand Jury indicted

Newsome on one count of robbery in violation of R.C. 2911.02(A)(2), a felony of

the second degree. The indictment stems from a robbery of a local convenience

store by two masked assailants, one of whom was later identified as Newsome.

Subsequently, Newsome entered a plea of not guilty to the sole count in the

indictment.

{¶3} On December 19 and 20, 2011, the matter proceeded to a jury trial.

After two hours of deliberation, the jury returned a verdict finding Newsome

guilty of robbery.

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{¶4} On December 23, 2011, the matter proceeded to sentencing, during

which the trial court sentenced Newsome to an eight-year prison term.

{¶5} It is from this judgment Newsome appeals, raising the following

assignments of error for our review.

Assignment of Error No. I

THE JURY ERRED BY FINDING APPELLANT GUILTY AS
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.

Assignment of Error No. II

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT WHEN IT REFUSED TO EXCLUDE HEARSAY
EVIDENCE.

Assignment of Error No. III

THE TRIAL COURT ERRED WHEN IT ADMITTED
HEARSAY EVIDENCE INADMISSIBLE UNDER THE RULE
IN BRUTON V. UNITED STATES.

Assignment of Error No. IV

THE TRIAL COURT ERRED IN ADMITTING THE
ALLEGED CHAFFINS (sic) STATEMENTS AS
“STATEMENTS AGAINST INTEREST.”

Assignment of Error No. V

THE TRIAL COURT ERRED BY ADMITTING HEARSAY
STATEMENTS OF ALLEGED CO-CONSPIRATOR
CHAFFINS.

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Assignment of Error No. VI

THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL AT TRIAL IN VIOLATION OF THE
APPELLANT’S CONSTITUTIONAL RIGHTS THEREBY
DENYING HIM A FAIR TRIAL.

Assignment of Error No. VII

TRIAL COUNSEL ERRED IN NOT CHALLENGING JUROR
OR REMOVING THE JUROR FOR CAUSE.

Assignment of Error No. VIII

THE TRIAL COURT ERRED BY SENTENCING
APPELLANT TO THE MAXIMUM TERM OF
IMPRISONMENT.

Assignment of Error No. IX

THE TRIAL COURT DID NOT PROPERLY INFORM THE
APPELLANT OF THE CONSEQUENCES OF VIOLATING
POST RELEASE CONTROL.

Assignment of Error No. X

THE COMBINATION OF THE CUMULATIVE ERRORS
ARE SUFFICIENT TO CALL INTO QUESTION THE
VALIDITY OF THE VERDICT PREVENTING THE
APPELLANT FROM OBTAINING A FAIR TRIAL.

{¶6} Due to the nature of Newsome’s assignments of error, we elect to

address the assignments out of order and combine the assignments where

appropriate.

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Assignment of Error No. I

{¶7} In his first assignment of error, Newsome contends that his finding of

guilt was against the manifest weight of evidence. We disagree.

{¶8} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,

387, superseded by constitutional amendment on other grounds as stated by State

v. Smith, 80 Ohio St.3d 89, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist. 1983). Only in exceptional cases, where the evidence “weighs heavily

against the conviction,” should an appellate court overturn the trial court’s

judgment. Id.

{¶9} As previously mentioned, Newsome was convicted of robbery in

violation of R.C. 2911.02(A)(2), which provides as follows:

(A) No person, in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense, shall do any of the
following:

***

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(2) Inflict, attempt to inflict, or threaten to inflict physical harm on
another[.]

Bearing these elements in mind, we turn to the evidence presented at trial.

{¶10} Anastasia Brooks (“Brooks”) testified that Newsome, her boyfriend

at the time, and John Matthew Chaffins (“Chaffins”), were residing in her

apartment, located in Defiance, Ohio, during the week of September 9, 2011.

During that week, Brooks overheard several conversations between Newsome and

Chaffins. At trial, the State questioned Brooks about what she overheard,

resulting in the following colloquy:

Q: During the course of the week, were you able to personally
overhear conversations between Matt and the defendant?

A: Yes.

Q: Did those conversations involve a plan to rob a place?

A: Yes.

***

Q: When you overheard them talking, you overheard them
discussing a plan to rob a location?

A: Yes.

Q: Did that include Mike’s Carry Out?

A: Yes.

Q: Was that Plan A?

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A: Yes.

Q: Do you recall Plan B being a plan to rob a different place if Plan
A did not work out?

A: Yes. Trial Tr., p. 225-227.

{¶11} According to Brooks, Newsome and Chaffins were at her apartment

on Friday, September 9, 2011, the day of the robbery (hereinafter “Friday”).

Brooks testified that Newsome and Chaffins left her apartment together at 9:30

p.m. that same day dressed in all black, wearing black nylon dew rags, and

carrying a gun and a red flashlight.

{¶12} Contrary to Brook’s testimony, Kimberly Black (“Black”), who was

also dating Newsome at the time, testified that she was with Newsome at his

mother’s, Tammy Wilder’s (“Wilder”), residence on Friday. Though Black

acknowledged that Newsome had gone over to Brooks’ apartment on Friday

during the day, she testified that he returned to his mother’s residence at

approximately 9:30 p.m. and remained there until the following morning.

{¶13} Nancy Dotson (“Dotson”) and Dan Groff (“Groff”) were working at

Bob’s Carryout in Continental, Ohio on Friday night. At approximately 11:00

p.m., two masked men wearing all black entered Bob’s Carryout. One of the men

demanded that Dotson open the register, while the other approached her wielding

a tire iron. Dotson, being fearful, moved out from behind the counter so the men

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could access the register. The masked men looted the register and fled with

several hundred dollars in one, five, ten, and twenty dollar bills.

{¶14} Officer Kyle Stechschulte (“Officer Stechschulte”) testified that he

was the second officer to arrive on scene. Officer Stechschulte testified that his

patrol dog Viking, a trained tracking dog, was with him the night of the robbery.

Officer Stechschulte testified that Viking picked up a scent that took him from

Bob’s Carryout over nearby railroad tracks and into a residential yard located at

202 North Elm Street.

{¶15} Meanwhile, on Friday night, Jeff Weible (“Jeff”), was at his

residence with his wife Amanda Weible (“Amanda”) and Black. Jeff testified that

he was acquainted with Newsome and Black via Wilder, their neighbor.

According to Jeff, he and Black were watching television at his residence on

Friday night. Jeff testified that he fell asleep in his living room around 11:00 p.m.

that night, and, at approximately midnight, was awoken by Newsome and Chaffins

walking into the living room. According to Jeff, Black and Newsome went over to

Wilder’s residence and Chaffins fell asleep on his couch.

{¶16} On the morning of Saturday, September 10, 2011 (hereinafter

“Saturday”), Amanda awoke to find Chaffins sleeping on her couch. Chaffins

offered to buy Amanda breakfast and she agreed. Amanda testified that she

thought Chaffins’ offer was strange because he said he had no money on Friday.
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{¶17} Meanwhile, on Saturday morning, Don Harter (“Harter”), who

resides at 202 North Elm Street, found a red flashlight and a tire iron while

mowing his lawn. Harter, who was aware that Bob’s Carryout had been robbed

the previous night, testified that he informed the Continental Police Department

about the items.

{¶18} Chief Arnie Hardy (“Chief Hardy”), chief of the Continental Police

Department, responded to Harter’s residence to investigate the items. Chief Hardy

documented the items and collected them as evidence. Chief Hardy testified that

he showed Dotson and Groff the tire iron found in Harter’s yard and each

identified it as being similar to the tire iron used during the robbery. Chief Hardy

later sent the red flashlight and tire iron to the Ohio Bureau of Criminal

Identification & Investigation (“BCI”) for fingerprint analysis. BCI, however, was

unable to obtain any usable fingerprints from the items.

{¶19} Brooks testified that she saw Chaffins and spoke with Newsome on

Saturday. Brooks testified that Chaffins indicated that “Plan A” did not work.

Trial Tr., p. 230. As for Newsome, Brooks testified that he called her in the

afternoon and asked her to move a gun. Brooks testified that she and another

woman, Cassandra Robinson (“Robinson”), followed Newsome’s directions and

located the gun, as well as a dew rag. Brooks testified that neither she nor

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Robinson touched the gun or dew rag, but that Robinson did report the items to the

Defiance Police Department.

{¶20} At trial, Brooks identified both the red flashlight found in Harter’s

yard and the gun she found near her apartment as the items she saw Newsome and

Chaffins with on the night of the robbery.

{¶21} Shortly after their discovery, Chief Hardy received the gun and dew

rag from the Defiance Police Department. Chief Hardy testified that he showed

the dew rag to Dotson and that she identified it as being similar to the ones worn

by the assailants. Soon after receiving the dew rag and gun, Chief Hardy received

several black clothes and another dew rag found in a corn field near Wilder’s

residence. Chief Hardy testified that one article of clothing found in the field, a

black t-shirt with white graphics, was similar to a black t-shirt worn by Newsome

in a picture Brooks took on September 8, 2011, the day before the robbery. After

collecting the dew rags, Chief Hardy sent them to BCI for DNA analysis.

{¶22} Lynda Eveleth (“Eveleth”), a forensic DNA analyst with BCI,

testified that she conducted DNA testing of both dew rags. Eveleth testified that

the DNA sample taken from the dew rag found near Newsome’s mother’s

residence matched Chaffins’ DNA sample. As for the dew rag found near Brooks’

apartment, Eveleth testified that Newsome could not be excluded as a contributor

of the DNA found in the dew rag.
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{¶23} Alex Recker (“Recker”), who was incarcerated in the same jail as

Chaffins and Newsome during the pendency of the instant case, testified that

Chaffins admitted to robbing a carryout with Newsome. At trial, the State

questioned Recker about the specifics of Chaffins’ statements, resulting in the

following colloquy:

Q: Did you have discussions then with John Matthew Chaffins
regarding his involvement on the robbery on September 9, 2011?

A: Yes.

Q: And did those discussions also include the involvement of Mr.
Newsome?

A: Yes.

***

Q: And can you describe what Chaffins told you in terms of the
circumstances surrounding that robbery of Bob’s carry out?

***

A: They first started out at an apartment in Defiance. They started
off that I guess they were going to rob a different store, but that
didn’t work out, so this was a fallback plan. And so they went to
Continental instead and came in through the back of the drive-thru,
and then I guess [Newsome] went in first; and then they got the
money and they went out the front of the store and ran over the
railroad tracks and then out of town that way.

***

Q: Did Chaffins discuss with you the ditching of any clothing?

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***

A: They said they got paranoid - -

***

A: - - on the way back, so they pulled off and they took off their
black clothes and threw it in a field.

Q: Did Chaffins make any statement about whether or not there was
any sort of item that they, weapon that they possessed when entering
Bob’s Carry Out?

A: They said they used a tire iron. Trial Tr., p. 289-291.

Recker testified that when he asked Newsome about the robbery, Newsome would

not admit his involvement.

{¶24} Upon considering the foregoing evidence, we find that Newsome’s

conviction for robbery was not against the manifest weight of the evidence.

Brooks’ testimony demonstrates that Newsome and Chaffins were planning to rob

a carryout. Brooks’ and Jeffery’s testimony, when viewed together, demonstrates

that Newsome and Chaffins were together on the night of the robbery and their

whereabouts unknown at the time the robbery occurred. Brooks’ testimony also

demonstrates that Newsome and Chaffins were dressed in all black and wearing

dew rags, like the assailants that robbed Bob’s Carryout, an hour and a half before

the robbery occurred. The red flashlight discovered in Harter’s yard, which

Brooks identified as the flashlight Newsome and Chaffins possessed on the night

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of the robbery, demonstrates that Newsome and Chaffins were near Bob’s

Carryout on the night of the robbery. DNA testing of the dew rag, which was

found near a gun that Newsome asked Brooks to retrieve and was identified by

Dotson as similar to the dew rags worn by the assailants, demonstrates that

Newsome was one of the assailants. Finally, Recker’s testimony concerning

Chaffins’ description of the events preceding the robbery, the robbery itself, and

the events following the robbery corroborate the overwhelming circumstantial

evidence which, in and of itself, supports the jury’s determination that Newsome

robbed Bob’s Carryout.

{¶25} Accordingly, we overrule Newsome’s first assignment of error.

Assignments of Error Nos. II, III, IV & V

{¶26} In his second, third, fourth, and fifth assignments of error, Newsome

contends that the trial court erred when it refused to exclude Recker’s testimony

describing Chaffins’ statements. In particular, Newsome argues that Recker’s

testimony was (1) violative of the Confrontation Clause, (2) inadmissible under

the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968),

and (3) inadmissible hearsay. We disagree.

The Confrontation Clause

{¶27} The Sixth Amendment to the U.S. Constitution provides, in relevant

part, that, “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to
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be confronted with the witnesses against him.” Specifically, the Confrontation

Clause bars the “‘admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had had a

prior opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813,

821, 126 S.Ct. 2266 (2006), quoting Crawford v. Washington, 541 U.S. 36, 53-54,

124 S.Ct. 1354 (2004). Conversely, the Confrontation Clause does not bar the

admission of nontestimonial out-of-court statements. Whorton v. Bockting, 549

U.S. 406, 420, 127 S.Ct. 1173 (2007). Accordingly, the threshold question in a

case, such as this, where a violation of the Confrontation Clause is alleged “is

whether the challenged statement is testimonial. If it is not, the Confrontation

Clause ‘has no application[.]’” United States v. Figueroa-Cartagena, 612 F.3d 69,

85 (1st Cir.2010), quoting Whorton at 420.

{¶28} Newsome contends that Chaffins’ statements to Recker were

testimonial, because the State presented no evidence establishing Recker’s motive

for testifying. Without such evidence, Newsome argues that Chaffins’ statements

were testimonial because they were made “in a setting that could have only lead to

a government informant seeking to elicit the statements to further the prosecution

against Chaffins or [Newsome.]” Appellant’s Br., p. 11. We find Newsome’s

argument unavailing.

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{¶29} Contrary to Newsome’s argument, the State’s failure to present

evidence regarding Recker’s motive to testify does not create a presumption that

Recker was a government informant seeking to elicit statements for prosecution.

First, Newsome cites no authority which supports such a presumption. Second,

and more importantly, Newsome had the opportunity to cross-examine Recker

concerning his motives for testifying and did not. Given these shortcomings, we

find that the State’s failure to present evidence regarding Recker’s motive to

testify does not create a presumption that Recker was a government informant

seeking to elicit statements for purposes of prosecution.

{¶30} Chaffins’ statements to Recker bear none of the characteristics of

testimonial statements. The record reveals that Chaffins and Recker became

familiar with each other because they were housed together in the jail’s medical

pod. During their time together, the men casually conversed about the offenses

that lead to their incarceration. It was during these conversations that Chaffins

freely described the robbery. Given these facts, we find that Chaffins’ statements

were not made under formal circumstances (such as police interrogation), but

rather to a fellow inmate, under circumstances that did not portend their use at trial

against Newsome or Chaffins. See Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (“An

accuser who makes a formal statement to government officers bears testimony in a

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sense that a person who makes a casual remark to an acquaintance does not.”). As

such, we find Chaffins’ statements to Recker were nontestimonial.

{¶31} Our finding is consistent with other courts, which have found inmate

conversations similar to those between Recker and Chaffins to be nontestimonial.

Dutton v. Evans, 400 U.S. 74, 87-89, 91 S.Ct. 210 (1970) (plurality opinion,

Stewart, J.) (determining that Confrontation Clause did not bar statements from

one inmate to another)1; United States v. Pelletier, 666 F.3d 1, 9-10 (1st Cir.2011)

(determined that statements from one inmate to another were nontestimonial); U.S.

v. Smith, 383 Fed.Appx. 355, 357 (4th Cir.2010) (same); United States v. Johnson,

495 F.3d 951, 976 (8th Cir.2007) (same); United States v. Johnson, 192 Fed.Appx.

935, 938 (11th Cir.2006) (same); see also United States v. Smalls, 605 F.3d 765,

778 (10th Cir.2010) (finding statement made to confidential informant

nontestimonial where declarant knew informant only as an inmate); United States

v. Johnson, 581 F.3d 320, 325 (6th Cir.2009) (same).

{¶32} Given the foregoing, we find that Chaffins’ statements to Recker

were nontestimonial, and consequently find that their admission was not barred by

the Confrontation Clause.

1
While the Dutton decision was decided before Crawford, the Supreme Court recognized that the
statements at issue in Dutton were nontestimonial. Davis at 825.
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Bruton v. United States

{¶33} Contrary to Newsome’s assertion, the rule announced in Bruton v.

United States is inapplicable. In Bruton, the Supreme Court held that introducing

an out-of-court confession by a non-testifying defendant violated the

Confrontation Clause rights of a co-defendant who was incriminated by the

statement. Bruton, 391 U.S. at 137, 88 S.Ct. 1620. Because it is premised on the

Confrontation Clause, the Bruton rule, like the Confrontation Clause, does not

apply to nontestimonial statements. E.g., Johnson, 581 F.3d at 326. Accordingly,

since Chaffins’ statements to Recker were nontestimonial their admission does not

offend the rule announced in Bruton.

Hearsay

{¶34} While Chaffins’ statements to Recker are not violative of the

Confrontation Clause or the rule announced in Bruton, their admission was still

subject to the Rules of Evidence. Here, Newsome contends that Recker’s

testimony describing Chaffins’ statements was inadmissible hearsay. While we

agree that Recker’s testimony describing Chaffins’ statements was hearsay, we

find that the trial court properly admitted Recker’s testimony as a statement

against interest.

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{¶35} Hearsay evidence is not admissible “unless subject to a relevant

exception.”2 State v. Steffen, 31 Ohio St.3d 111, 119 (1987), citing Evid.R. 802.

During trial, the trial court determined that Chaffins’ statements to Recker were

admissible as statements against interest. Evid.R. 804(B)(3) provides an exception

for statements against interest when the declarant is unavailable to testify as a

witness, and provides, in relevant part, as follows:

(3) Statement against interest. A statement that was at the time of its
making so far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would not have
made the statement unless the declarant believed it to be true. A
statement tending to expose the declarant to criminal liability,
whether offered to exculpate or inculpate the accused, is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement

{¶36} For Chaffins’ statements to qualify under the statement against

interest exception, the State must have established that (1) Chaffins was

unavailable as a witness, (2) the statements were against Chaffins’ interest and

tended to subject him to criminal liability, and (3) corroborating circumstances

indicate the trustworthiness of the statements. Evid.R. 804(B)(3). All three

elements must be present in order for the statements to be admissible under

2
Though the hearsay exceptions contained within the Rules of Evidence are often the means by which
hearsay is rendered admissible, we note, for purposes of completeness, that hearsay is also admissible as
provided by the “Constitution of the United States, by the Constitution of the State of Ohio, by statute
enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, * * *, or by
other rules prescribed by the Supreme Court of Ohio.” Evid.R. 802.
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Evid.R. 804(B)(3). See, e.g., State v. Gilliam, 70 Ohio St.3d 17, 20 (1994),

overruled on other grounds by State v. Madrigal, 87 Ohio St.3d 378 (2000).

Admission of a hearsay statement pursuant to Evid.R. 804(B)(3) is within the

sound discretion of the trial court, and will not be disturbed absent an abuse of that

discretion. State v. Sumlin, 69 Ohio St.3d 105, 108 (1994), citing State v.

Landrum, 53 Ohio St.3d 107, 114 (1990).

{¶37} Both parties agree that the first two elements have been established.

As for the first element, a declarant who invokes their right against self-

incrimination is considered unavailable for purposes of the unavailability

requirement of Evid.R. 804. Sumlin at 108; Landrum at 113. Here, the State

called Chaffins’ to the stand, where he asserted his right against self-incrimination.

Accordingly, Chaffins was unavailable. As for the second element, Chaffins’

statements that he robbed Bob’s Carryout with Newsome clearly expose him to

criminal liability.

{¶38} Newsome, however, contends that there were insufficient

corroborating circumstances indicating the trustworthiness of Chaffins’

statements. We disagree. Recker and Chaffins’ relationship, which can best be

described as a friendship, is a circumstance indicating trustworthiness. State v.

Yarbrough, 95 Ohio St.3d 227, 236 (2002) (“[W]here a declarant makes a

statement to someone with whom he has a close personal relationship, such as a *
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* * friend, courts usually hold that the relationship is a corroborating circumstance

supporting the statement’s trustworthiness.”), citing Green v. Georgia, 442 U.S.

95, 97, 99 S.Ct. 2150 (1979). Also, the fact that Chaffins’ description of the

robbery did not shift blame solely onto Newsome, or minimize his participation in

the robbery, is a circumstance indicating trustworthiness. See State v. Issa, 93

Ohio St.3d 49, 61 (2001).

{¶39} Given the foregoing, as well as the lack of any evidence that Recker

was working as a government informant or was receiving something in exchange

for his testimony, we find that the trial court did not abuse its discretion when it

determined that Chaffins’ statements were trustworthy and consequently

admissible under the statements against interest hearsay exception.3

Harmless Error

{¶40} Assuming arguendo Recker’s testimony describing Chaffins’

statements was inadmissible, admission of Recker’s testimony would be harmless

error in light of the overwhelming circumstantial evidence implicating Newsome

in the robbery.

{¶41} In sum, we find that admission of Recker’s testimony describing

Chaffins’ statements about the robbery was not violative of the Confrontation
3
In addition to arguing that Chaffins’ statements are not admissible as statements against interest,
Newsome also argues that Chaffins’ statements do not qualify as statements of a co-conspirator, under
Evid.R. 801(D)(2)(e). We need not reach this argument, however, since we have determined that Chaffins’
statements are admissible as statements against interest.
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Clause, the rule announced in Bruton, and was admissible pursuant to the

statement against interest hearsay exception. Moreover, even if Recker’s

testimony was inadmissible its admission would be harmless error in light of the

other evidence presented at trial.

{¶42} Accordingly, we overrule Newsome’s second, third, fourth, and fifth

assignments or error.

Assignments of Error Nos. VI & VII

{¶43} In his sixth and seventh assignments of error, Newsome contends

that he was denied effective assistance of counsel. As to his sixth assignment of

error, Newsome argues that trial counsel should have filed a motion to suppress

statements he made to law enforcement. As to his seventh assignment of error,

Newsome argues that counsel should have challenged the empanelment of one of

the jurors during voir dire. We disagree with both contentions.

{¶44} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of syllabus. To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different. Id. at paragraph three of syllabus. “Reasonable
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probability” is a probability sufficient to undermine confidence in the outcome of

the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by

constitutional amendment on other grounds as recognized by Smith, 80 Ohio St.3d

at 103.

{¶45} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone,

2d Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely

because counsel failed ‘to recognize the factual or legal basis for a claim, or failed

to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray, 477 U.S.

527, 535, 106 S.Ct. 2661 (1986).

Motion to Suppress

{¶46} “[F]ailure to file a suppression motion does not constitute per se

ineffective assistance of counsel.” Madrigal, 87 Ohio St.3d at 389, quoting

Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574 (1986). There must

also be a reasonable probability that the motion will be successful. State v. Ligon,

3d Dist. No. 4-2000-25, (June 18, 2001). Thus, this court’s determination of

whether Newsome’s trial counsel was ineffective relies upon whether there was a

reasonable probability that a motion to suppress would have been successful.

State v. Pierce, 3d Dist. No. 11-09-05, 2010-Ohio-478, ¶ 34.

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{¶47} Newsome argues that trial counsel should have filed a motion to

suppress statements he made to law enforcement. Several days after the robbery

occurred, Chief Hardy interviewed Newsome at the Putnam County Sheriff’s

Office.4 The interview was recorded (“the recording”) and segments of the

interview were played during trial. Newsome argues that he was neither informed

of nor waived his Miranda rights prior to interview.5 Newsome bases his

argument on the fact that none of the interview segments played during trial

contained a Miranda warning. As a result, Newsome argues that there was a

reasonable probability that a motion to suppress would have been successful had it

been filed with the trial court. We find Newsome’s argument unavailing.

{¶48} The mere fact that none of the interview segments played at trial

contained a Miranda warning does not, as Newsome argues, establish that Chief

Hardy failed to administer Miranda warnings. The record reveals that the State

forwarded the recording to Newsome’s trial counsel. (Docket No. 17, p. 2).

Attorneys licensed by the State of Ohio are presumed to provide competent

representation, thus we must afford a high level of deference to the performance of

trial counsel. State v. Plotts, 3d Dist. No. 15-10-08, 2011-Ohio-900, ¶ 37. Given

4
We note that Newsome was in custody at the time of the interview.
5
Although the record contains the interview recording in its entirety, the recording was not admitted into
evidence. Therefore, we are not permitted to consider those portions of the recording not presented at trial,
and thus cannot independently determine whether Chief Hardy administered Miranda warnings to
Newsome.

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this presumption, we must presume that Newsome’s counsel reviewed the

recording. Without evidence to the contrary, we can only surmise that the

recording captured Chief Hardy administering Miranda warnings to Newsome. If

this were not the case, we would expect, and the law presumes, that Newsome’s

counsel would have filed a motion to suppress the interview. Consequently, we

find that Newsome has failed to demonstrate that there was a reasonable

probability that a motion to suppress would have been successful.

Juror Challenge

{¶49} Newsome contends that he was denied effective assistance of counsel

because counsel did not challenge Juror Dalton Yenser (“Juror Yenser”) for cause.

Specifically, Newsome argues that counsel should have challenged Juror Yenser

for cause because he was acquainted with Newsome and had knowledge of the

robbery. We disagree.

{¶50} The decision whether to challenge a juror for cause is a trial tactic.

See State v. Hill, 3d Dist. No. 11-03-07, 2003-Ohio-5123, ¶ 30. Debatable trial

tactics, without more, will not be grounds for a claim of ineffective assistance. Id.,

citing State v. Clayton, 62 Ohio St.2d 45, 49 (1980). In particular, when jurors

demonstrate during voir dire that they are able to remain fair and impartial, no

action will lie for ineffective assistance of counsel for not seeking their removal.

State v. Bofia, 3d Dist. No. 7-03-12, 2004-Ohio-3018, ¶ 14, citing Hill at ¶ 29.
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{¶51} During voir dire, the trial court asked the prospective jurors whether

they had any knowledge or information concerning the robbery of Bob’s Carryout.

Several jurors responded in the affirmative, including Juror Yenser. The trial

court questioned Juror Yenser about his knowledge of the robbery, resulting in the

following colloquy:

Juror Yenser: I was actually right down the road when it happened.
I didn’t see anything; but I was - - we came back from the racetrack,
and I was told that it just happened.

The Court: All right. Do you know any of the individuals involved
in these allegations?

Juror Jenser: Just the people that called it in. I didn’t really know
anything else about it.

The Court: Do you feel that you could put out of you mind any
information that you would have and judge this case solely from
what you would see and hear in the courtroom?

Juror Yenser: Yes. Trial Tr., p. 15.

{¶52} The trial court also asked the prospective jurors whether they knew

Newsome, to which Juror Yenser responded in the affirmative. The trial court

questioned Juror Yenser about his acquaintance with Newsome, resulting in the

following colloquy:

Juror Yenser: [Newsome] used to be a close friend of my cousin’s.

The Court: All right. Did you have any contact with Mr. Newsome?

Juror Yenser: Yes.
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The Court: In the past did you have contact with him?

Juror Yenser: Yes, he used to be my neighbor at one point in time.

The Court: All right. And your instruction would be to judge this
case solely from what you would see and hear from the witness
stand and that you be a fair and impartial juror to both sides.
Knowing that the defendant in this case is Joshua Newsome, do you
feel that you could be a fair and impartial juror?

Juror Yenser: Yeah.

The Court: Do you feel you could put out of you mind those past
contacts that you may have had with him?

Juror Yenser: Yes.

The Court: When was the last contact you had with him?

{¶53} Juror Yenser: Three or four years ago probably.

The Court: All right. Do you feel comfortable in being a juror,
knowing that you have some past contact?

Juror Yenser: Yeah. Trial Tr., p. 17-18.

In addition to the foregoing colloquy, the State and Newsome’s counsel also

questioned Juror Yenser about his prior contacts with Newsome and whether he

could remain fair and impartial in light of his acquaintance with Newsome. In

each instance, Juror Yenser testified that his acquaintance with Newsome would

not affect his ability to be impartial and fair.

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{¶54} Though Juror Yenser was both aware of the robbery and familiar

with Newsome, we find, given his responses during voir dire, that he was capable

of being a fair and impartial juror. Juror Yenser knew little about the robbery

beyond the fact that it occurred and he knew the people who reported the robbery

to law enforcement. Given the paucity of Juror Yenser’s knowledge about the

robbery, there was no reason for Newsome’s counsel to doubt Juror Yenser when

he testified that he was capable of setting his knowledge of the robbery aside and

remain fair and impartial.

{¶55} Similarly, Juror Yenser testified that his acquaintance with Newsome

would not affect his ability to be fair and impartial. During voir dire, Juror Yenser

testified that he and Newsome were neighbors approximately ten years prior.

Juror Yenser also testified that, through his cousin, he had contact with Newsome,

but that he had not seen Newsome in four years. At best, Juror Yenser’s

acquaintance with Newsome was distant and casual, not close and ongoing. Given

the nature of Juror Yenser’s acquaintance with Newsome, there was no reason for

Newsome’s counsel to doubt Juror Yenser when he testified that his acquaintance

with Newsome would not affect his ability to be fair and impartial. See State v.

Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 208, citing Miller v. Francis, 269

F.3d 609, 618 (6th Cir.2001).

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Case No. 12-12-03

{¶56} Based on Juror Yenser’s testimony, we find that he was able to

demonstrate that he could remain fair and impartial. Accordingly, counsel’s

failure to challenge Juror Yenser for cause did not deny Newsome effective

assistance of counsel. Bofia, 2004-Ohio-3018, at ¶ 14.

{¶57} Accordingly, we overrule Newsome’s sixth and seventh assignments

of error.

Assignment of Error No. X

{¶58} In his tenth assignment of error, Newsome contends that the

combined effect of all the errors in this case denied him a right to a fair trial. We

disagree.

{¶59} Pursuant to the cumulative error doctrine, a conviction will be

reversed where the cumulative effect of the errors in a trial deprives a defendant of

the constitutional right to a fair trial even though each of the errors in and of

themselves are not cause for reversal. State v. Powell, 132 Ohio St.3d 233, 2012-

Ohio-2577, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph

two of the syllabus. Since we have found no errors, the doctrine of cumulative

error is not applicable in the instant case.

{¶60} Accordingly, we overrule Newsome’s tenth assignment of error.

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Assignment of Error No. VIII

{¶61} In his eighth assignment of error, Newsome contends that the trial

court erred when it sentenced him to the maximum sentence. We disagree.

{¶62} “A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d

Dist. No. 12-12-01, 2012-Ohio-3196, ¶ 20, citing R.C. 2953.08(G)(2). Clear and

convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. An appellate

court should not, however, substitute its judgment for that of the trial court

because the trial court is “‘clearly in the better position to judge the defendant’s

likelihood of recidivism and to ascertain the effect of the crimes on the victims.’”

State v. Watkins, 3d Dist. No. 2-04-08, 2004-Ohio-4809, ¶ 16.

{¶63} R.C. Chapter 2929 governs sentencing. When sentencing a felony

offender, the trial court must consider R.C. 2929.11, which sets forth the

overriding purposes of felony sentencing, providing, in relevant part, as follows:

(A) A court that sentences an offender for a felony shall be guided
by the overriding purposes of felony sentencing. The overriding
purposes of felony sentencing are to protect the public from future
crime by the offender and others and to punish the offender using the
minimum sanctions that the court determines accomplish those
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Case No. 12-12-03

purposes without imposing an unnecessary burden on state or local
government resources. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating
the offender, and making restitution to the victim of the offense, the
public, or both.

(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the two overriding purposes of felony sentencing set forth
in division (A) of this section, commensurate with and not
demeaning to the seriousness of the offender’s conduct and its
impact upon the victim, and consistent with sentences imposed for
similar crimes committed by similar offenders.

{¶64} The trial court must also consider the factors set forth under R.C.

2929.12(B), (C), (D), and (E) relating to the seriousness of the offender’s conduct

and the likelihood of the offender’s recidivism, and “may consider any other

factors that are relevant to achieving those purposes and principles of sentencing.”

State v. Hartley, 3d Dist. No. 14-11-29, 2012-Ohio-4108, ¶ 31; R.C. 2929.12(A).

{¶65} Newsome argues that the trial court erred in imposing the maximum

sentence because it commented on charges pending against him in unrelated cases

and the fact that he could have been charged with aggravated robbery, a felony of

the first degree. We find Newsome’s argument unavailing.

{¶66} There is no evidence that the comments described above

prejudicially affected the trial court’s sentencing decision. As for the pending

charges, the trial court explicitly stated that the pending charges did not factor into

its sentencing decision. As for the possibility of being charged with a first degree
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Case No. 12-12-03

felony, we fail to see how this comment prejudicially affected the trial court’s

sentencing decision. If anything, mention of this possibility simply highlighted

the serious nature of the offense, which is to be considered when sentencing a

felony offender. See R.C. 2929.12(B).

{¶67} Notwithstanding the comments Newsome complains of on appeal,

Newsome points to nothing that clearly and convincingly demonstrates that the

record does not support the trial court’s imposition of the maximum sentence.

During the sentencing hearing, the trial court “considered the record, oral

statements, Defendant’s prior pre-sentence investigation report, and any victim

impact statements, as well as the principles and purposes of sentencing under Ohio

Revised Code Section 2929.11 & 2929.12.” Judgment Entry of Sentencing, p. 1.

Our independent review of these materials, particularly the pre-sentence

investigation report (“PSI”), reveals that Newsome’s sentence is supported by the

record.

{¶68} According to the PSI, Newsome, who was 24 years old at the time of

sentencing, had an extensive criminal history dating back to 1999. During the

sentencing hearing, the trial court addressed Newsome’s criminal history which

included offenses committed while he was a juvenile and an adult. These offenses

included, but are not limited to, theft, attempted theft, domestic violence, criminal

damaging, probation violation, failure to comply with an order of a police officer,
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Case No. 12-12-03

disorderly conduct, obstructing official business, attempted grand theft of a motor

vehicle, and contributing to the delinquency of a minor. In light of Newsome’s

extensive criminal history and the violent nature of the robbery at issue in the

instant case, we find that the trial court’s decision to sentence Newsome to the

maximum sentence is supported by the record.

{¶69} Accordingly, we overrule Newsome’s eighth assignment of error.

Assignment of Error No. IX

{¶70} In his ninth assignment of error, Newsome contends that the trial

court did not properly inform him of the consequences for violating post-release

control. Specifically, Newsome argues that pursuant to R.C. 2967.28(F)(3) the

trial court was required to, and failed to, inform him “about the possibility of a

sentence up to nine months as [a] post-release control sanction.” Appellant’s Br.,

p. 22. We disagree.

{¶71} R.C. 2929.19 governs the trial court’s duty to conduct a sentencing

hearing. In an earlier version of R.C. 2929.19, the trial court was required to

notify a felony offender about the possibility that he or she could be sentenced to a

nine-month prison term if he or she violated the terms of their post-release control.

However, this requirement was removed via amendments to R.C. 2929.19 that

took effect on March 23, 2000. Am.Sub.S.B. No. 107 (1999).

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Case No. 12-12-03

{¶72} At the time of Newsome’s sentencing, R.C. 2929.19(B) provided, in

relevant part, as follows:

(2) * * * if the sentencing court determines at the sentencing hearing
that a prison term is necessary or required, the court shall do all of
the following:

***

(c) Notify the offender that the offender will be supervised under
section 2967.28 of the Revised Code after the offender leaves prison
if the offender is being sentenced for a felony of the * * * second
degree[.]

***

(e) Notify the offender that, if a period of supervision is imposed
following the offender’s release from prison, as described in division
(B)(2)(c) or (d) of this section, and if the offender violates that
supervision or a condition of post-release control imposed under
division (B) of section 2967.131 of the Revised Code, the parole
board may impose a prison term, as part of the sentence, of up to
one-half of the stated prison term originally imposed upon the
offender.

Notably, the foregoing language does not require the trial court to notify a felony

offender that he or she may be sentenced to a nine-month prison term if he or she

violates the terms of their post-release control. Instead, R.C. 2929.19(B), simply

requires the trial court to notify the felony offender of two things about post-

release control, to wit: (1) the offender will be supervised under R.C. 2967.28,

which governs post-release control, after they leave prison; and (2) if the offender

violates post-release control they are subject to an additional period of
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Case No. 12-12-03

incarceration of up to one-half of the stated prison term originally imposed upon

them.6 R.C. 2929.19(B)(2)(c), (e).

{¶73} Given the legislative history of R.C. 2929.19 and its plain language,

we find that the trial court was not required to notify Newsome of the possibility

that he could be sentenced to a nine-month prison term if he violated the terms of

his post-release control. State v. Zganjer, 8th Dist. No. 94724, 2011-Ohio-606.

{¶74} During the sentencing hearing, the trial court advised Newsome that

he was subject to mandatory post-release control for 3 years and that violating the

terms of his post-release control could result in the imposition of a prison term of

up to one-half his original sentence, or four years. We find that the trial court’s

advisements concerning post-release control were both proper and sufficient to

satisfy R.C. 2929.19(B). Therefore, we find Newsome’s argument unavailing.

{¶75} Accordingly, we overrule Newsome’s ninth assignment of error.

{¶76} Having found no error prejudicial to Newsome herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

6
In addition to these requirements, this court and others have recognized that the trial court must also
notify the defendant of whether post-release control is mandatory or discretionary and the duration of post-
release control. State v. Holdcroft, 3d Dist. No. 16-10-13, 2012-Ohio-3066, ¶ 29, citing State v. Fischer,
128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 27-29.

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