State v. Triplett

[Cite as State v. Triplett, 2014-Ohio-3101.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2013CA00209
SON ANDERSON TRIPLETT, JR. :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2013-
CR-0563

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 14, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN FERRERO GEORGE URBAN
Stark County Prosecutor 116 Cleveland Ave. N.W., Ste 808
BY RENEE WATSON Canton, OH 44702
110 Central Plaza South
Canton, OH 44702
[Cite as State v. Triplett, 2014-Ohio-3101.]

Gwin, J.

{¶1} Defendant-appellant Son Anderson Triplett [“Triplett”] appeals his

convictions and sentences on one count of assault and one count of tampering with

drugs after a jury trial in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} Charla Green lives on Smith Ave. SW in Canton, across the street from

Tonya Rohrer. On March 23, 2013, she arrived home around 9:00 p.m. to find a white

Cadillac parked in front of her house. She parked behind the vehicle and walked past it

to her house. She recognized the man in the driver's seat as Triplett — she had seen

him and Rohrer together in the past.

{¶3} Triplett sat parked for a long time, and then repetitively drove up and down

the street. Green thought the situation was suspicious, and it scared her children. She

called 9-1-1 and reported Triplett's activities.

{¶4} Meanwhile, Rohrer was home asleep. Around 2:30-3:00 a.m., Triplett

entered her home, angry. Rohrer "knew not to argue with him" and "didn't want him to

go all crazy in [her] house with [her] kids around," so she went outside with him and sat

in his car. Triplett then took off with Rohrer in the car and drove around Canton while

beating her, biting her and threatening to kill her. Eventually Rohrer jumped from the

moving car to escape.

{¶5} While all that was going on, Gilise Mammone, an insomniac, was up

watching television. Around 3:00 a.m., she heard someone pounding frantically at her

door. She looked outside, but did not see anyone. She went to a different window and

saw a white car drive past. Mammone then went to the front door and opened the
Stark County, Case No. 2013CA00209 3

interior door, but still saw nothing. She then opened the screen door and yelled, "What’s

going on out here?"

{¶6} Rohrer emerged from between the houses, and begged Mammone to let

her in, pleading, "he's trying to kill me." Mammone said no, closed, and locked the

screen door. Rohrer stepped up onto the porch, tripping the security light. Mammone

then saw terror in Rohrer's eyes, and an injury on her forehead. Rohrer continued

repeating, "He’s going to kill me." Mammone relented and let Rohrer come inside her

home.

{¶7} Mammone sat Rohrer down and called 9-1-1. After giving the dispatcher

her location and the nature of the call, she put Rohrer on the phone. Rohrer was upset,

crying and breathing heavily. She told the dispatcher "he was beating on me...I'm not

lying about it- he tried to kill me."

{¶8} Three Canton Police Officers arrived shortly thereafter. Although Rohrer

was "in a semi-state of hysteria," Officer Jim Meyers also felt Rohrer was not being

completely honest. Rohrer first claimed that while out walking her dog, she was

abducted by an unknown black male who was driving a white Cadillac. She said the

man beat her, bit her, choked her and explained to her in detail how he was going to kill

her. Meyers noted Rohrer had a lump on her forehead, but Rohrer refused medical

attention and stated she wanted to go home. Meyers put her in his cruiser and started

driving toward her home.

{¶9} On the way, a call went out notifying officers that the suspect white

Cadillac and driver had been located and stopped. Meyers changed course, and took

Rohrer to that location. She identified Triplett as the man who assaulted her.
Stark County, Case No. 2013CA00209 4

{¶10} At that point, Rohrer became more cooperative. She told Meyers that she

knew Triplett, and that initially their meeting that evening began civilly. He came to her

house and they sat in his car talking. Then the conversation became heated, and she

wanted to leave the car. However, Triplett grabbed her, drove off at speed and started

"whaling" on her — choking her, biting her and hitting her in the ribs. He explained how

he was going to kill her. Rohrer finally managed to bail out of the car near Mammone's

home.

{¶11} Meyers photographed Rohrer's injuries — a lump on her head bruises on

her neck and a bite mark on her chin, Rohrer additionally complained that her ribs hurt,

but still refused medical treatment.

{¶12} Triplett was arrested and booked by Officers Sharpe and Grant. During

booking a clear plastic sandwich baggie containing six blue pills was found in Triplett's

pants pocket. Triplett initially claimed the pills were Viagra, but then later stated they

were Xanax and that he sometimes sells the pills for cash. The pills were sent to the

Canton Stark County Crime Lab where Jay Spencer completed testing on the pills. He

confirmed that they were indeed Xanax, a Schedule IV drug.

{¶13} As a result of his actions, Triplett was later charged with one count each of

kidnapping, assault and tampering with drugs.

{¶14} The state presented six witnesses. Triplett rested without presenting

evidence. After hearing all the evidence and deliberating for three hours, the jury

acquitted Triplett of kidnapping, but convicted him of assault and tampering with drugs.

Triplett was subsequently sentenced to 180 days for assault and 24 months for

tampering with drugs. The court ordered Triplett to serve the sentences concurrently.
Stark County, Case No. 2013CA00209 5

Assignments of Error

{¶15} Triplett raises four assignments of error,

{¶16} “I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE USE A

PEREMPTORY CHALLENGE TO EXCUSE THE ONLY PROSPECTIVE AFRICAN

AMERICAN JUROR.

{¶17} “II. APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF

PROSECUTORIAL MISCONDUCT.

{¶18} “III. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND

OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSITUTION,[sic.] BECAUSE HIS

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSITANCE. [sic.]

{¶19} “IV. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

I.

{¶20} A defendant is denied equal protection of the law guaranteed to him by the

Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the

Ohio Constitution when the state places the defendant on trial before a jury from which

members of the defendant's race have been purposely excluded. Strauder v. W.

Virginia, 100 U.S. 303, 305, 25 L.Ed. 664(1880); State v. Hernandez, 63 Ohio St.3d

577, 589 N.E.2d 1310(1992); State v. Bryant, 104 Ohio App.3d 512, 516, 662 N.E.2d

846(6th Dist. 1995). The “equal protection clause forbids a prosecutor from challenging

potential jurors solely on account of their race or on the assumption that jurors of the
Stark County, Case No. 2013CA00209 6

same race as the defendant will be unable to impartially consider the state's case

against the defendant.” State v. Bryant, 104 Ohio App.3d 512, 516, 662 N.E.2d 846(6th

Dist. 1995); Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).

{¶21} In his first assignment of error, Triplett maintains that the trial court failed

to conduct a proper constitutional analysis as outlined in Batson v. Kentucky in

determining that the state was not racially motivated in excluding an African-American

from the jury through the use of peremptory challenges. See, Hicks v. Westinghouse

Materials Co., 78 Ohio St.3d 95, 98, 676 N.E. 2d 872(1997); State v. Toland, 5th Dist.

No. 2006-CA-0162, 2007-Ohio-644.

The Batson Test

{¶22} Whenever a party opposes a peremptory challenge by claiming racial

discrimination “[a] judge should make clear, on the record, that he or she understands

and has applied the precise Batson test * * *.” Hicks v. Westinghouse Materials Co., 78

Ohio St.3d at 99, 676 N.E. 2d 872.

{¶23} In Hicks, the Ohio Supreme Court set forth the Batson test as follows:

The United States Supreme Court set forth in Batson the test to be

used in determining whether a peremptory strike is racially motivated.

First, a party opposing a peremptory challenge must demonstrate a prima-

facie case of racial discrimination in the use of the strike. Id. at 96, 106

S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a prima-facie case, a litigant

must show he or she is a member of a cognizable racial group and that

the peremptory challenge will remove a member of the litigant's race from

the venire. The peremptory-challenge opponent is entitled to rely on the
Stark County, Case No. 2013CA00209 7

fact that the strike is an inherently ‘discriminating’ device, permitting ‘those

to discriminate who are of a mind to discriminate’. State v. Hernandez

(1992), 63 Ohio St.3d 577, 582, 589 N.E.2d 1310, 1313, certiorari denied

(1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d 206. The litigant must

then show an inference of racial discrimination by the striking party. The

trial court should consider all relevant circumstances in determining

whether a prima-facie case exists, including all statements by counsel

exercising the peremptory challenge, counsel's questions during voir dire,

and whether a pattern of strikes against minority venire members is

present. See, Batson at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.

Assuming a prima-facie case exists, the striking party must then articulate

a race-neutral explanation ‘related to the particular case to be tried.’ Id. at

95, 106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of general

good faith will not suffice. However, the explanation ‘need not rise to the

level justifying exercise of a challenge for cause.’ Id. at 97, 106 S.Ct. at

723, 90 L.Ed.2d at 88. The critical issue is whether a discriminatory intent

is inherent in counsel's explanation for use of the strike; intent is present if

the explanation is merely pretext for exclusion based on race. Hernandez

v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395,

409(1991).

Hick, 78 Ohio St.3d. at 98-99, 676 N.E.2d 872.

{¶24} Although the prosecutor must present a comprehensible reason, “[t]he

second step of this process does not demand an explanation that is persuasive or even
Stark County, Case No. 2013CA00209 8

plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v.

Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834(1995) (per curiam);

Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824(2006).

{¶25} Last, the trial court must determine whether the party opposing the

peremptory strike has proved purposeful discrimination. Purkett v. Elem, 514 U.S. at

766-767, 115 S.Ct. 1769, 131 L.Ed.2d 834. It is at this stage that the persuasiveness,

and credibility, of the justification offered by the striking party becomes relevant. Id. at

768, 115 S.Ct. at 1771, 131 L.Ed.2d 834. The critical question, which the trial judge

must resolve, is whether counsel's race-neutral explanation should be believed.

Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. 1859,114 L.Ed.2d 395; State v.

Nash, 5th Dist. No. 1995 CA 00024, 1995 WL 767987(August 14, 1995). This final step

involves evaluating “the persuasiveness of the justification” proffered by the prosecutor,

but “the ultimate burden of persuasion regarding racial motivation rests with, and never

shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769, 131

L.Ed.2d 834; Rice v. Collins, 546 U.S. at 338, 126 S.Ct. 969, 163 L.Ed.2d 824.

{¶26} On direct appeal in federal court, the credibility findings a trial court makes

in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U.S. at

364-366, 111 S.Ct. 1859, 114 L.Ed.2d 395. (Holding that evaluation of a prosecutor's

credibility “lies ‘peculiarly within a trial judge's province’”). Rice v. Collins, 546 U.S. at

338, 126 S.Ct. 969, 163 L.Ed.2d 824.

{¶27} It is irrelevant how many minority jurors remain on the panel if even one is

excluded because of race. State v. Bryant, 104 Ohio App.3d 512, 662 N.E.2d 846(6th

Dist. 1995); State v. Tuck 80 Ohio App.3d 721, 724, 610 N.E.2d 591(10th Dist. 1992)
Stark County, Case No. 2013CA00209 9

(Batson, applicable even if there is only one African-American juror on the panel); Jones

v. Ryan, 987 F.2d 960, 972( 3rd Cir. 1993); United States v. David, 803 F.2d 1567(11th

Dist. 1986).

Batson Does Not Apply to a Challenge “For Case.”

{¶28} In the case at bar, Triplett complains that the trial court erred when it did

not make a clear record that it understood or applied the Batson test when it permitted

the state to use a peremptory challenge to excuse Juror 36, the only prospective African

American juror. (Appellant’s Brief at 8).

{¶29} However, the state did not seek to utilize a preemptory challenge to

remove Juror No. 36; rather the trial judge sua sponte struck the juror “for cause.” (1T.

at 78-79).

{¶30} Challenges for cause are governed by R.C. 2945.25 and Crim.R. 24(C). A

person called as a juror in a criminal case may be challenged for many reasons,

including "That he otherwise is unsuitable for any other cause to serve as a juror." R.C.

2945.25(0). See Crim.R. 24(C)(14). In State v. Cassano, the Ohio Supreme Court

observed,

Defendants are entitled to fair trials, an essential part of which is

“‘a panel of impartial, “indifferent” jurors.’ ” Murphy v. Florida (1975), 421

U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589, quoting Irvin v. Dowd

(1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. However, trial courts

have discretion in determining a juror’s ability to be impartial. State v.

Williams (1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 452 N.E.2d 1323.

“‘Deference must be paid to the trial judge who sees and hears the juror.’ ”
Stark County, Case No. 2013CA00209 10

State v. Tyler (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, quoting

Wainwright v. Witt (1985), 469 U.S. 412, 426, 105 S.Ct. 844, 83 L.Ed.2d

841. Thus, a “ruling on a challenge for cause will not be disturbed on

appeal unless it is manifestly arbitrary * * * so as to constitute an abuse of

discretion.” Tyler, 50 Ohio St.3d at 31, 553 N.E.2d 576. Accord State v.

Williams (1997), 79 Ohio St.3d 1, 8, 679 N.E.2d 646.

96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶58.

{¶31} In State v. Sanders, 92 Ohio St.3d 245, 249, 750 N.E.2d 90 (2001), the

Supreme Court of Ohio held that: “[A]n erroneous excusal for cause, on grounds other

than the venireman’s views on capital punishment, is not cognizable error, since a party

has no right to have any particular person sit on the jury. Unlike the erroneous denial of

a challenge for cause, an erroneous excusal cannot cause the seating of a biased juror

and therefore does not taint the jury’s impartiality.” At least one Court has recognized,

however,

We recognize that a trial court must have substantial discretion in

ruling upon challenges for cause—precisely because it is there to see and

hear the prospective juror, while we are not. But completely immunizing

from appellate review decisions to excuse prospective jurors for cause

may lead to substantial injustice. As a result, a trial judge may, with

impunity, follow a practice of routinely allowing the State (or one party in

civil litigation) to exclude jurors for cause without any basis in the record,

while requiring a strict basis in the record for the other party’s challenges

for cause. This would have the effect of allowing unlimited peremptory
Stark County, Case No. 2013CA00209 11

challenges by one party, but not by the other, thereby allowing the

preferred party a greater opportunity to choose the jury.

State v. Smith, 2nd Dist. Montgomery No. 24402, 2013-Ohio-1586, ¶23.

{¶32} In the case at bar, excusing Juror No. 26 was within the trial court’s

discretion. Crim.R. 24(B) provides,

A person called as a juror may be challenged for the following

causes:

***

(14) That he is otherwise unsuitable for any other cause to serve as

a juror.

{¶33} A juror can be excused for cause for a myriad of reasons under the

catchall provision of R.C. 2945.37(O). Reasons can range from inattentiveness to

financial hardship to health concerns. Indeed, in State v. Sanders, 92 Ohio St.3d 245,

249, 2001-Ohio-189, 750 N.E.2d 90, a venire person was excused for cause because

she could not go without a cigarette for any length of time.

{¶34} In the case at bar the record indicated that Juror 36 was have trouble

giving the trial the attention it deserved. (1T. at 53-54; 66). In making its decision to

excuse Juror 36 for cause, the trial court made it clear that not only Juror 36's answers,

but also what he was conveying through his body language, indicated he would not give

this case the attention it was due. Juror 36's answers and inattentive attitude made him

otherwise unsuitable as a juror pursuant to R.C. 2945.25(O).

{¶35} Triplett has not alleged that the trial court’s reasons for removing Juror No.

36 for cause were not supported by the record. Triplett’s only argument is that the
Stark County, Case No. 2013CA00209 12

prosecutor “purposefully excused” the only African-American juror. (Appellant’s Brief at

8). The record does not support Triplett’s contentions.

{¶36} Triplett’s first assignment of error is overruled.

II.

{¶37} In his second assignment of error, Triplett argues that the prosecutor

committed misconduct by engaging in a line of questioning that was "testimonial in

nature" during her direct examination of Rohrer.

{¶38} The prosecutor's duty in a criminal trial is two-fold. The prosecutor is to

present the case for the State as its advocate and the prosecutor is responsible to

ensure that an accused receives a fair trial. Berger v. United States, 295 U. S. 78, 55

S.Ct. 629, 79 L.Ed. 1314(1935) overruled on other grounds by Stirone v. United States,

361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); State v. Staten (1984), 14 Ohio

App.3d 78, 470 N.E.2d 249(2nd Dist. 1984).

{¶39} Allegations of prosecutorial misconduct implicate due-process concerns,

and the touchstone of the analysis is the “‘fairness of the trial, not the culpability of the

prosecutor.’” State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, ¶ 92,

quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). An

appellate court should also consider whether the misconduct was an isolated incident in

an otherwise properly tried case. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d

203, 209-210(1993); Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d

144(1986).

{¶40} Triplett first maintains that the prosecutor essentially testified by asking

Rohrer leading questions.
Stark County, Case No. 2013CA00209 13

{¶41} In the case at bar, the trial court found Rohrer was being uncooperative

under the state's questioning and permitted the state to question Rohrer as a hostile

witness, and pursuant to Evid. R. 611(C).

{¶42} Evid.R. 611(C) provides, “Leading questions [may be used on direct

examination] to develop [a witness's] testimony. * * * When a party calls a hostile

witness, an adverse party, or a witness identified with an adverse party, interrogation

may be by leading questions.”

{¶43} Evid.R. 607 states:

The credibility of a witness may be attacked by any party except

that the credibility of a witness may be attacked by the party calling the

witness by means of a prior inconsistent statement only upon a showing of

surprise and affirmative damage. This exception does not apply to

statements admitted pursuant to Rules 801(D)(1)(A), 801(D)(2), or 803.

{¶44} Triplett does not challenge the trial court's decision to permit the state to

question Rohrer as a hostile witness. Thus, pursuant to Evid. R. 607, the state could

use Rohrer’s prior statement for impeachment purposes.

{¶45} Triplett next contends that the prosecutor made improper comments

during closing argument.

{¶46} The test for prejudice in closing arguments is “‘ “whether the remarks were

improper, and, if so, whether they prejudicially affected substantial rights of the

defendant.” ’ ” State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶

83, quoting State v. Hessler, 90 Ohio St.3d 108, 125, 734 N.E.2d 1237 (2000), quoting

State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984).
Stark County, Case No. 2013CA00209 14

{¶47} For a prosecutor’s closing argument to be prejudicial, the remarks must be

“so inflammatory as to render the jury’s decision a product solely of passion and

prejudice.” State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986). To

determine whether the remarks were prejudicial, the court must review the closing

argument in its entirety. State v. Slagle, 65 Ohio St.3d 597, 607, 605 N.E.2d 916 (1992);

State v. Moritz, 63 Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980). Thus, the court must

consider all of the prosecutor’s remarks, irrespective of whether the defense preserved

an objection. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993) ( “even

though the defense waived objection to many remarks, those remarks still form part of

the context in which we evaluate the effect on the jury of errors that were not waived”).

{¶48} Assuming, arguendo, the prosecutor's comment was improper, we find

Triplett cannot show prejudicial error. The trial court sustained the objection and gave a

curative instruction. A jury is presumed to follow the curative instructions of the court.

State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623, 634(1995); State v. Loza, 71

Ohio St.3d 61, 75, 641 N.E.2d 1082, 1100(1994). Additionally, there is only one incident

of alleged misconduct in closing argument. If indeed the statement constituted

misconduct, it was an isolated incident in an otherwise properly tried case. We find the

prosecutor’s single, isolated statement in closing argument to be harmless beyond a

reasonable doubt.

{¶49} Triplett’s second assignment of error is overruled.

III.

{¶50} Officer Lamar Sharpe of the Canton Police Department testified that

Triplett made a statement that he, Triplett, sold Xanax. (1T. at 240). In his third
Stark County, Case No. 2013CA00209 15

assignment of error, Triplett contends that his trial counsel was ineffective when he

failed to play any audio or video recordings concerning the alleged statement he made

to Officer Sharpe.[Appellant’s Brief at 12).

{¶51} The standard for reviewing claims for ineffective assistance of counsel

was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984). Ohio adopted this standard in the case of State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373(1989). These cases require a two-pronged analysis in reviewing a

claim for ineffective assistance of counsel.

{¶52} First, we must determine whether counsel's assistance was ineffective;

i.e., whether counsel's performance fell below an objective standard of reasonable

representation and volatile of any of his essential duties to the client.

{¶53} Recently, the United States Supreme Court discussed the prejudice prong

of the Strickland test,

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the

errors had some conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S.Ct. 2052.
Stark County, Case No. 2013CA00209 16

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

(2010). An ineffective-assistance claim can function as a way to escape

rules of waiver and forfeiture and raise issues not presented at trial, and

so the Strickland standard must be applied with scrupulous care, lest

“intrusive post-trial inquiry” threaten the integrity of the very adversary

process the right to counsel is meant to serve. Strickland, 466 U.S., at

689–690, 104 S.Ct. 2052. Even under de novo review, the standard for

judging counsel’s representation is a most deferential one. Unlike a later

reviewing court, the attorney observed the relevant proceedings, knew of

materials outside the record, and interacted with the client, with opposing

counsel, and with the judge. It is “all too tempting” to “second-guess

counsel’s assistance after conviction or adverse sentence.” Id., at 689,

104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,

152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113

S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s

representation amounted to incompetence under “prevailing professional

norms,” not whether it deviated from best practices or most common

custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).

{¶54} We apply the Strickland test to all claims of ineffective assistance of

counsel, either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. Guernsey

No. 2005-CA-41, 2006-Ohio-5214.
Stark County, Case No. 2013CA00209 17

{¶55} In the case at bar, the following exchange occurred at trial

[Defense counsel]: There’s no recording of this statement

that he made to you?

[Officer Sharpe]: Actually, they are taped down there.

1T. at 241. Nothing in the record supports the conclusion that a tape existed of the

specific encounter and/or that if a tape did in fact exist it would be exculpatory to

Triplett. Even if Triplett had made no statement concerning the pills found in his

possession, however, he cannot demonstrate prejudice as a result of counsel’s actions.

{¶56} Triplett was convicted of with tampering with drugs pursuant to R.C.

2925.24(B),

(B) No person shall knowingly adulterate or alter any package or

receptacle containing any dangerous drug or substitute any package or

receptacle containing any dangerous drug with another package or

receptacle.

{¶57} R.C. 2925.24(D) provides,

(D) It is an affirmative defense to a charge under this section

alleging that a person altered a dangerous drug that the dangerous drug

the person allegedly altered was lawfully prescribed for the person's

personal use and that the person did not sell or transfer or intend to sell or

transfer the dangerous drug to another person.

{¶58} Thus, it was Triplett’s burden to produce a valid prescription in order to

prove the affirmative defense provided by R.C. 2925.24(D). Accordingly, even if Triplett
Stark County, Case No. 2013CA00209 18

had not made a statement to Officer Sharpe the jury could still find him guilty of

tampering with drugs.

{¶59} Having reviewed the record that Triplett cites in support of his claim that

he was denied effective assistance of counsel, we find Triplett was not prejudiced by

defense counsel’s representation of him. The result of the trial was not unreliable nor

were the proceedings fundamentally unfair because of the performance of defense

counsel. Triplett has failed to demonstrate that there exists a reasonable probability

that, had trial counsel presented audio or video recordings of Triplett’s encounter with

Officer Sharpe the result of his case would have been different.

{¶60} Triplett’s third assignment of error is overruled.

IV.

{¶61} Triplett contends that his convictions are against the manifest weight of

the evidence.

Standard of Review

{¶62} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶68.
Stark County, Case No. 2013CA00209 19

{¶63} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue,

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

{¶64} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury 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, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.
Stark County, Case No. 2013CA00209 20

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts.

***

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent with

the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

{¶65} Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at

191–192 (1978).

Analysis

Sufficiency of the Evidence

1). Tampering with Drugs.

{¶66} Triplett was convicted of with tampering with drugs pursuant to R.C.

2925.24(B),

(B) No person shall knowingly adulterate or alter any package or

receptacle containing any dangerous drug or substitute any package or

receptacle containing any dangerous drug with another package or

receptacle.

{¶67} R.C. 2925.24(D) provides an affirmative defense to the charge:
Stark County, Case No. 2013CA00209 21

(D) It is an affirmative defense to a charge under this section

alleging that a person altered a dangerous drug that the dangerous drug

the person allegedly altered was lawfully prescribed for the person's

personal use and that the person did not sell or transfer or intend to sell or

transfer the dangerous drug to another person.

{¶68} Triplett argues that Officer Sharpe could only assume Triplett placed the

Xanax in the baggie and that the state could not prove that Triplett did not have a valid

prescription for Xanax.

{¶69} Although the evidence that Triplett was responsible for placing the pills in

the plastic bag found in his pocket may have been circumstantial, we note that

circumstantial evidence has the same probative value as direct evidence. State v. Jenks

61 Ohio St.3d 259, 574 N.E. 2d 492(1991).

{¶70} If the State relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “‘such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.’” Jenks, at paragraph

one of the syllabus. “‘Circumstantial evidence and direct evidence inherently possess

the same probative value [.]’” Jenks, at paragraph one of the syllabus.

{¶71} Furthermore, “‘[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury's fact-finding function is concerned, all that is

required of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against

the standard of proof beyond a reasonable doubt.’” Jenks, 61 Ohio St.3d at 272, 574

N.E. 2d 492. While inferences cannot be based on inferences, a number of conclusions

can result from the same set of facts. State v. Lott, 1 Ohio St.3d 160, 168, 555 N.E.2d
Stark County, Case No. 2013CA00209 22

293(1990), citing Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 331, 130

N.E.2d 820(1955). Moreover, a series of facts and circumstances can be employed by a

jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555

N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

{¶72} The baggie containing Xanax was found in Triplett's pants pocket creating

the inference that he removed the pills from their proper container and placed them in

the baggie. Further, the state presented evidence that Triplett told Officer Sharpe he

sometimes sold the Xanax for cash. Finally, it was Triplett’s burden to produce a valid

prescription in order to prove the affirmative defense provided by R.C. 2925.24(D).

{¶73} Accordingly, viewing the evidence in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Triplett committed the crime of tampering with drugs. We hold,

therefore, that the state met its burden of production regarding each element of the

crime of tampering with drugs and, accordingly, there was sufficient evidence to submit

the charge to the jury and to support Triplett’s conviction.

2. Assault.

{¶74} Triplett was also charged with assault pursuant to R.C. 2903.13(A). To

prove the charge, it was necessary for the state to show that Triplett knowingly caused

or attempted to cause physical harm to Rohrer. “Physical harm to persons” means any

injury, illness, or other physiological impairment, regardless of its gravity or duration.

R.C. 2901.01(A)(3).

{¶75} Triplett points to testimony that Rohrer herself testified Triplett did not

cause her injuries. Rohrer testifed that Triplett did not hit her and if she had any marks it
Stark County, Case No. 2013CA00209 23

would have been from her coat. (1T. at 158-159). Moreover, Rohrer testified that she

hurt herself when she jumped out Triplett’s vehicle. (Id.). Rohrer testified that if she had

any injuries at all, they would have been by her own actions and she did not seek any

medical treatment. (1T. at 160-167). Triplett states this testimony indicates that his

conviction for assault was against the manifest weight and sufficiency of the evidence

because the alleged victim, Rohrer, testified that her injuries were self-inflicted because

she jumped out of Triplett’s car while it was moving.

{¶76} The state presented evidence that during the 9-1-1 call, state's exhibit 1,

Rohrer was upset, crying, and breathing heavily. She repeats many times to the 9-1-1

operator the same thing she kept repeating to Mammone, "he tried to kill me." She then

told Officer Meyers that Triplett refused to let her out of his car while he beat her,

choked her and bit her.

{¶77} Accordingly, viewing the evidence in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Triplett committed the crime of assault. We hold, therefore, that

the state met its burden of production regarding each element of the crime of assault

and, accordingly, there was sufficient evidence to submit the charge to the jury and to

support Triplett’s conviction.

Manifest Weight

{¶78} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
Stark County, Case No. 2013CA00209 24

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,

201, 722 N.E.2d 125 (7th Dist. 1999).

{¶79} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

{¶80} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,

1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
Stark County, Case No. 2013CA00209 25

Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks, supra.

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts.

***

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).

{¶81} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for

resolving disputed facts. The degree of proof required is determined by

the impression which the testimony of the witnesses makes upon the trier

of facts, and the character of the testimony itself. Credibility, intelligence,

freedom from bias or prejudice, opportunity to be informed, the disposition

to tell the truth or otherwise, and the probability or improbability of the

statements made, are all tests of testimonial value. Where the evidence is
Stark County, Case No. 2013CA00209 26

in conflict, the trier of facts may determine what should be accepted as the

truth and what should be rejected as false. See Rice v. City of Cleveland,

114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

{¶82} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost their way

nor created a miscarriage of justice in convicting Triplett of the charges.

{¶83} Based upon the foregoing and the entire record in this matter, we find

Triplett’s convictions were not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions

concerning the credibility of the testimony Rohrer and the other witnesses. This court

will not disturb the trier of facts finding so long as competent evidence was present to

support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard

the witnesses, evaluated the evidence, and was convinced of Triplett’s guilt.
Stark County, Case No. 2013CA00209 27

{¶84} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of

each crime beyond a reasonable doubt.

{¶85} Triplett’s fourth assignment of error is overruled.

{¶86} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas, Ohio, is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Wise, J., concur