State v. Pleban

[Cite as State v. Pleban, 2011-Ohio-3254.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 10CA009789

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
RONALD H. PLEBAN COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 09CR077940

DECISION AND JOURNAL ENTRY

Dated: June 30, 2011

CARR, Presiding Judge.

{¶1} Appellant, Ronald Pleban, appeals his conviction out of the Lorain County Court

of Common Pleas. This Court affirms.

I.

{¶2} On April 23, 2009, Pleban was indicted on one count of inducing panic in

violation of R.C. 2917.31(A)(3), a felony of the fourth degree; and one count of aggravated

menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree. Pleban pleaded

not guilty to the charges at arraignment. The State moved to amend count one of the indictment

(inducing panic) to identify the offense of aggravated menacing as the predicate offense. The

matter was scheduled for a trial to the bench. At the conclusion of the State’s case-in-chief, the

State reminded the trial court of the pending motion to amend the indictment. Pleban agreed that

the amendment was proper and asserted he had no objection. The trial court granted the State’s

motion to amend.
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{¶3} At the conclusion of trial, the trial court allowed the parties to submit trial briefs

in lieu of closing arguments. On December 9, 2009, the trial court issued a judgment entry in

which it found Pleban guilty of inducing panic, as charged, and guilty of attempted aggravated

menacing in violation of R.C. 2923.02/2903.21(A), a misdemeanor of the second degree. The

trial court referred the matter for a presentence investigation and report and ordered the State to

present any claim for restitution at the time of imposition of sentencing. A restitution and

sentencing hearing was held on February 18, 2010. The trial court sentenced Pleban to

community control and ordered him to make restitution to Lorain County in the amount of

$9,855.46.

{¶4} Pleban filed a timely appeal, in which he raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

“PLEBAN’S CONVICTION FOR INDUCING PANIC WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE, AND MUST BE REVERSED.”

{¶5} Pleban argues that his conviction for inducing panic was not supported by

sufficient evidence. Specifically, he argues that (1) the State failed to present sufficient evidence

to prove aggravated menacing, the predicate offense on which the charge of inducing panic was

premised; (2) the State failed to present sufficient evidence that Pleban committed the predicate

offense with reckless disregard of the likelihood that its commission would cause serious public

inconvenience or alarm; and (3) the State failed to present sufficient evidence that Pleban’s

actions caused economic harm in an amount of five thousand dollars or more but less than one

hundred thousand dollars. This Court disagrees.

{¶6} The law pertaining to a challenge to the sufficiency of the evidence is well settled:
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“An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Galloway (Jan. 31, 2001), 9th Dist.
No. 19752.

The test for sufficiency requires a determination of whether the State has met its burden of

production at trial. State v. Walker (Dec. 12, 2001), 9th Dist. No. 20559; see, also, State v.

Thompkins (1997), 78 Ohio St.3d 380, 390.

{¶7} Pleban was convicted of inducing panic in violation of R.C. 2917.31(A)(3), which

states: “No person shall cause the evacuation of any public place, or otherwise cause serious

public inconvenience or alarm, by *** [c]ommitting any offense, with reckless disregard of the

likelihood that its commission will cause serious public inconvenience or alarm.” R.C.

2901.22(C) provides that “[a] person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to cause a certain

result or is likely to be of a certain nature. A person is reckless with respect to circumstances

when, with heedless indifference to the consequences, he perversely disregards a known risk that

such circumstances are likely to exist.”

Predicate Offense

{¶8} The trial court found Pleban guilty of attempted aggravated menacing as the

predicate offense underlying the charge of inducing panic. Pleban argues that, because he was

charged with aggravated menacing, his due process rights were violated when the trial court

convicted him of a different crime, specifically, attempted aggravated menacing. His argument

is not well taken.
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{¶9} Both R.C. 2945.74 and Crim.R. 31(C) provide, in relevant part, that the trier of

fact may find a defendant not guilty of a charged offense, but guilty of an attempt to commit the

charged offense if such attempt is an offense at law. It is well established that attempts to

commit charged crimes constitute one of the three types of lesser offenses a trier of fact may

consider when determining a defendant’s guilt, the other two types being inferior degrees of the

indicted offense and lesser included offenses. Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-

Ohio-2072, at ¶10, citing State v. Deem (1988), 40 Ohio St.3d 205, paragraph one of the

syllabus, construing R.C. 2945.74 and Crim.R. 31(C). The Deem court explained: “Attempts, as

criminal offenses, arise from R.C. 2923.02 and need not be included within the indictment for

the completed offense. Rather, if during the course of trial the defendant presents sufficient

evidence that his conduct was unsuccessful in constituting the indicted offense, an instruction to

the jury on attempt would be proper.” Deem, 40 Ohio St.3d at 208. Accordingly, because

attempt crimes are subsumed within indicted offenses, Pleban’s conviction for attempted

aggravated menacing did not violate his due process rights where he was charged with

aggravated menacing.

{¶10} Pleban was charged with aggravated menacing in violation of R.C. 2903.21(A)

which states that “[n]o person shall knowingly cause another to believe that the offender will

cause serious physical harm to the person or property of the other person, the other person’s

unborn, or a member of the other person’s immediate family.” The attempt statute, R.C.

2923.02, states that “[n]o person, purposely or knowingly, and when purpose or knowledge is

sufficient culpability for the commission of an offense, shall engage in conduct which, if

successful, would constitute or result in the offense.” R.C. 2901.22(B) states: “A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a
 5

certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C. 2901.01(A)(5) defines “serious

physical harm to persons” as any of the following:

“(a) Any mental illness or condition of such gravity as would normally require
hospitalization or prolonged psychiatric treatment;

“(b) Any physical harm which carries a substantial risk of death;

“(c) Any physical harm which involves some permanent incapacity, whether
partial or total, or which involves some temporary, substantial incapacity;

“(d) Any physical harm which involves some permanent disfigurement, or which
involves some temporary, serious disfigurement;

“(e) Any physical harm which involves acute pain of such duration as to result in
substantial suffering, or that involves any degree of prolonged or intractable
pain.”

R.C. 2901.01(A)(6) defines “serious physical harm to property” as physical harm which either:

“(a) Results in substantial loss to the value of the property, or requires a
substantial amount of time, effort, or money to repair or replace;

“(b) Temporarily prevents the use or enjoyment of the property, or substantially
interferes with its use or enjoyment for an extended period of time.”

{¶11} The State amended the charge immediately prior to trial to allege that Pleban’s

wife Karen was the intended victim of aggravated menacing.

{¶12} Susan Neely, communications officer from the Lorain County Sheriff’s

Department (“LCSD”), testified that she received a phone call from Karen Pleban on February

25, 2009, regarding her husband. The recorded call was played in court. Mrs. Pleban reported to

the LCSD that she had left her husband that day because of his ongoing erratic behavior and that

he was now threatening to shoot and kill himself and the couple’s two dogs. She requested a

welfare check on her husband because of his behavior, threats, and compromised health.
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Although Mrs. Pleban agreed to meet the deputies at her home to let them enter, she made clear

that she was not willing to enter the home herself.

{¶13} Deputy Debra Eskut of the LCSD testified that she is a trained hostage negotiator

with experience in suicide intervention and mental health counseling. She testified that she was

dispatched to Pleban’s home regarding an older male who threatened to harm himself. She

testified that Mrs. Pleban stayed at the scene all night and never asked law enforcement to

abandon their efforts. Deputy Eskut testified that Mrs. Pleban appeared upset, stressed, and

worried throughout the incident.

{¶14} Deputy Eskut testified that she negotiated with Pleban throughout the night by

telephone and that those calls were recorded until shortly after 11:30 p.m. when her phone went

dead and she was forced to communicate with Pleban through the on-site command vehicle

rather than her cruiser and dispatch. The recordings of her conversations with Pleban until they

could no longer be recorded were admitted into evidence. The recordings evidence Pleban’s

assertion that he was despondent and intended to shoot and kill himself and the couple’s two

dogs, as earlier reported by Mrs. Pleban to the LCSD dispatch center. Pleban informed Deputy

Eskut that one of the dogs belonged to his wife and that the couple thought of the dogs as their

children.

{¶15} Sergeant Daniel Ashdown of the LCSD testified that he responded to a “stand-off

situation” near Pleban’s home. He testified that his unit relieved one of the perimeter units at

11:15 p.m. at the intersection of Woodhill and Galaxy, where Mrs. Pleban also remained all

night. The sergeant testified that Mrs. Pleban never requested that law enforcement call off their

efforts.
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{¶16} Captain John Reiber, the director of law enforcement for the LCSD, testified that

he responded to the area of Pleban’s home within his capacity as co-commander of the Lorain

County SWAT team. He testified that he was located at the intersection of Woodhill and

Galaxy, where Mrs. Pleban remained. He testified that Mrs. Pleban never requested that law

enforcement call off their efforts, nor did she express any desire during the incident to speak with

her husband.

{¶17} Rose Temas testified for the defense. She testified that she is Karen Pleban’s

sister and that Karen contacted her on February 25, 2009, over concerns for her husband’s well

being. Ms. Temas testified that her sister was very concerned because Pleban told her he was

planning to hurt himself and the couple’s dogs. Ms. Temas testified that her sister asserted that

she was not going back home because her husband had been drinking and “she didn’t know what

to expect.” Ms. Temas testified that she spoke with Pleban on the phone and he threatened to

hurt the couple’s dogs and do whatever he could to get his wife to return home.

{¶18} Karen Pleban testified in her husband’s defense. She testified that she left her

husband on February 25, 2009, because his on-going mood swings made him unpredictable and

she “couldn’t take it anymore.” Mrs. Pleban testified that her husband threatened to kill himself,

as well as the couple’s dogs, if she would not agree to return to him. She admitted that there was

one time that evening that she was concerned for the dogs, but she testified that she otherwise did

not take his threats seriously. Mrs. Pleban testified that she believed that her husband’s threats

were just a way to compel her to return home. She asserted, however, that law enforcement

should have recognized from their involvement with Pleban that night that he was “not right,”

“not balanced,” “unstable,” and should have been transported for psychiatric intervention at Nord

Center.
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{¶19} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found the essential elements of attempted

aggravated menacing were proved beyond a reasonable doubt. See Jenks at paragraph two of the

syllabus. The State presented evidence that Pleban made threats to his wife while he was in a

depressed and unstable state that he was going to shoot himself and the couple’s pet dogs.

Pleban, as Karen’s husband, was a member of the alleged victim’s immediate family. The

evidence demonstrated that one of the dogs was the personal property of Mrs. Pleban. Several

witnesses testified that Mrs. Pleban seemed very concerned for her husband’s welfare and state

of mind, and that she never requested that law enforcement terminate their efforts to talk Pleban

out of the house safely. Although Mrs. Pleban testified that she did not believe that her husband

would follow through with his threats, she admitted that she had concern for the safety of the

dogs on one occasion during the incident. Under the circumstances, there was sufficient

evidence to establish that Pleban attempted to knowingly cause his wife to believe that he would

cause serious physical harm by means of a hand gun to both himself and the couple’s dogs.

Accordingly, the State presented sufficient evidence to establish that Pleban committed

attempted aggravated menacing, the predicate offense on which the charge of inducing panic was

premised.

Reckless Disregard of the Likelihood of Serious Public Inconvenience or Alarm

{¶20} Pleban argues that the State presented insufficient evidence to establish that he

acted with reckless disregard of the likelihood that his attempt to cause his wife to believe that he

would shoot himself and the couple’s dogs would likely cause serious public inconvenience or

alarm. This Court disagrees.
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{¶21} Mrs. Pleban testified that she told her husband that she was going to call the

sheriff’s department after he threatened to harm himself. She testified that Pleban told her that

they would simply find him and the dogs dead. Pleban’s comments and subsequent failure to

answer his phone caused his wife to contact the sheriff’s department and request a welfare check.

Although Mrs. Pleban informed the dispatcher about Pleban’s heart condition, she also discussed

his threats and recent instability and erratic behavior.

{¶22} The 2-3-hours long recording of the telephone communications between Deputy

Eskut and Pleban evidence that he was aware that Ms. Eskut was an employee of the LCSD and

that law enforcement was involved in the situation. Deputy Eskut initiated her conversation with

Pleban by informing him that she was calling on behalf of the sheriff’s department. On

numerous occasions she referred to herself within the context of the sheriff’s department. Pleban

repeatedly indicated that he understood that she was affiliated with the sheriff’s department and

repeatedly assured her that he would not hurt her because he would never shoot a police officer.

Pleban frequently indicated that he believed that there were snipers in the area ready to shoot

him, and Deputy Eskut responded every time that they had not mobilized snipers and that they

merely wanted to help Pleban. Although Pleban repeatedly asserted that he would not harm a

police officer, he continuously asserted that he was planning to shoot and kill himself and the

family’s two dogs. Pleban gleefully described the numerous firearms he had in the house,

including two loaded .45 Magnum pistols with hollow point bullets which he had next to him.

Pleban bragged that he had “all kinds of ways to kill [him]self” and that he “would be dead

before the cops get in here.” While Deputy Eskut was able to calm Pleban down at times, he

consistently refused to leave his house and talk with her despite her assertions that she would not

leave until they had resolved his stand-off.
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{¶23} Deputy Eskut testified that, as the night wore on, Pleban became more agitated

and began to threaten to kill anyone who came to his door. After he made such threats, hung up,

and refused to reengage in communications with Deputy Eskut, the LCSD brought in the SWAT

team, set up a perimeter to close roads in the immediate area, and deployed “Snoopy,” an

armored personnel carrier. Pleban only agreed to leave his home around 8:00 a.m. on February

26, 2009, 12-14 hours after law enforcement arrived on the scene and initiated negotiations, and

only because he believed that the armored vehicle on his property was going to “blow [his] house

down.”

{¶24} Sergeant Ashdown testified that multiple units and SWAT team members were

sent to the area to prevent traffic from entering the area, to notify residents within the perimeter

to remain indoors, to evacuate other residents in close proximity to Pleban’s home, and to escort

other residents out of their homes safely if they had to leave.

{¶25} Thomas Kelley, the emergency management homeland security director for

Lorain County, testified that at approximately 4:00 a.m. on February 26, 2009, as the armed

stand-off situation continued, he notified the Elyria school system regarding the road closures

necessitated by safety concerns and directed the schools to reroute buses for the three affected

schools in the situation area.

{¶26} Richard Nielson, director of business services for the Elyria city school district,

testified that he received phone calls on February 26, 2009, from the transportation facility and

the LCSD requesting the rerouting of all schools buses in the Murray Ridge area because of a

hostage situation. He testified that 120-180 students were disrupted. Mr. Nielson testified that

the necessary rerouting caused inconvenience because children arrived late to school, educational
 11

programs were disrupted, and bus drivers had to work longer hours to accommodate the need for

alternate routes, which caused additional costs for the school district.

{¶27} Deputy Eskut testified that Mrs. Pleban remained on scene all night and that she

had on-going contact with Mrs. Pleban during the course of her negotiations with Pleban,

informing Mrs. Pleban regarding the situation with her husband. The deputy testified that Mrs.

Pleban remained worried and upset during her husband’s stand-off with law enforcement.

Deputy Eskut testified that Mrs. Pleban never criticized the actions of the law

enforcement/SWAT personnel, never requested that she be allowed to enter her home or speak

with her husband, and never recanted her earlier statements about her husband’s instability.

{¶28} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found the essential elements of the charge of

inducing panic were proved beyond a reasonable doubt. See Jenks at paragraph two of the

syllabus. The State presented evidence that Pleban attempted to cause his wife to believe that he

would kill himself and the couple’s two dogs. The evidence demonstrated that Mrs. Pleban was

aware of the existence of numerous firearms and ammunition in the couple’s home. She had also

conveyed to family, friends, and law enforcement her observations regarding her husband’s on-

going erratic behavior and instability. The State presented evidence that Mrs. Pleban informed

her husband that she planned to notify the LCSD because of his threats of harm. The evidence

demonstrated that Pleban knew that law enforcement was involved in the situation and that they

would not leave until the situation had been resolved, specifically, that he would cease his armed

stand-off and exit his home. The State presented evidence that, early in the negotiations with

Deputy Eskut, Pleban believed that there was greater involvement by law enforcement than there

was at that time. Specifically, Pleban stated that he believed that snipers had been deployed to
 12

shoot him. He mentioned to Deputy Eskut that he was not watching television because he knew

that the light from the screen would alert the snipers to his location in the house. It is reasonable

to infer that, if Pleban believed that armed snipers had been deployed to shoot him, law

enforcement would have also taken appropriate measures to ensure the safety of others in the

area, including setting up road blocks, requiring neighbors to either evacuate their homes or not

leave their homes, and rerouting traffic away from the area. Members of the public were in fact

inconvenienced. The evidence demonstrated that some neighbors were forced to evacuate their

homes but were not offered alternate accommodations. Some neighbors were not permitted to

leave their homes. Children from three local schools arrived late to school or not at all because

of the rerouting of school buses, necessitated by Pleban’s threats to use firearms and cause

serious physical harm to himself, the family’s dogs, and others. Under these circumstances,

there was sufficient evidence to establish that Pleban acted with reckless disregard of the

likelihood that he would cause serious public inconvenience or alarm when he told his wife that

he intended to kill himself and their dogs if she did not return to him. Accordingly, there was

sufficient evidence to establish that Pleban committed the offense of inducing panic.

{¶29} Pleban also argues that the State failed to present sufficient evidence of inducing

panic because suicide is not a crime and, therefore, does not constitute an offense of violence,

which is necessary to establish inducing panic. The State, however, did not charge Pleban with

inducing panic in violation of R.C. 2917.31(A)(2), which requires that serious public

inconvenience or alarm be premised on the threat to commit any offense of violence. Rather,

Pleban was charged in violation of R.C. 2917.31(A)(3), which requires that the serious public

inconvenience or alarm be premised on the commission of any offense, with reckless disregard
 13

of the likelihood that its commission will cause serious public inconvenience or alarm.

Accordingly, Pleban’s argument in this regard is irrelevant.

Economic Harm

{¶30} Pleban argues that the State presented insufficient evidence of the amount of

economic harm caused by his commission of the offense.

{¶31} Pleban argues that the amount of economic harm constitutes an element of the

offense of inducing panic. This Court disagrees.

{¶32} The value of the economic harm caused by Pleban’s commission of the crime of

inducing panic merely constitutes a special finding that serves to enhance the penalty of the

offense. See State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, at ¶13 (holding that “the value

of stolen property is not an essential element of the offense of theft but, rather, is a finding that

enhances the penalty of the offense. As such, it is submitted to a fact-finder for a special finding

in order to determine the degree of the offense.”) R.C. 2917.31(C)(2) provides that, except as

otherwise provided in subsequent subsections, inducing panic is a misdemeanor of the first

degree. R.C. 2917.31(C)(4)(b) provides that, where a violation results in economic harm in an

amount of five thousand dollars or more but less than one hundred thousand dollars, inducing

panic is a felony of the fourth degree. Pleban was charged with a felony of the fourth degree,

and the indictment further put him on notice of the alleged economic harm, in compliance with

due process requirements. See Smith at ¶14.

{¶33} R.C. 2917.31(E)(1)(b) defines “economic harm” in relevant part as follows: “All

costs incurred by the state or any political subdivision as a result of, or in making any response

to, the criminal conduct that constituted the violation of this section ***, including, but not
 14

limited to, all costs so incurred by any law enforcement officers, firefighters, rescue personnel, or

emergency medical services personnel of the state or the political subdivision.”

{¶34} Sergeant Ashdown testified that he compiled a “rough estimate” of the costs

associated with this incident by obtaining cost-related information from the supervisors of the

various agencies and services involved. He testified that Captain Cavanaugh, the SWAT

commander regarding the incident, provided him with personnel costs for the numerous SWAT

team members deployed to the scene. He testified that Tom Kelley provided costs for

deployment and operation of the on-site command post. Sergeant Ashdown testified that

Assistant Chief Scarboro of the Elyria Township Fire Department provided the costs for the

emergency/medical squads and crew on scene. Finally, the sergeant testified that he personally

calculated the costs associated with LCSD personnel on scene, including himself; his

predecessor on the scene, Sergeant Gallaher; and all perimeter units comprised of ground patrol

forces. He emphasized that, while these units were on the scene of the stand-off at Pleban’s

residence, they were not available to respond to any other calls. Sergeant Ashdown testified that

the cost incurred by the government to respond to the situation created by Pleban was

$10,340.50.

{¶35} Pleban complains that Sergeant Ashdown included his own pay in the calculation

of costs even though he was already on duty the night of February 25, 2009. The statute,

however, defines “economic harm” broadly, including “all costs” incurred by any law

enforcement officer and other emergency-type personnel. R.C. 2917.31(E)(1)(b). It does not

limit those costs merely to overtime pay and/or deployment of additional personnel or

equipment. Pleban failed to cite any authority for his argument, and this Court is loathe to
 15

disregard the costs of payment for on-duty personnel deployed in response to public

inconvenience or alarm in light of the breadth of the statutory language.

{¶36} Pleban also argues that Sergeant Ashdown’s testimony was speculative. Sergeant

Ashdown testified that he served as the liaison on scene between the SWAT commander and the

communications unit. Accordingly, he was aware of the nature and extent of personnel and

equipment deployed to the area. Moreover, the sergeant testified that he collected information

regarding costs associated with the response by law enforcement and other service agencies from

the supervisors of the involved units and crews. Given Sergeant Ashdown’s role in regard to the

incident, Pleban’s argument that his calculation of the economic harm realized was merely

speculative must fail.

{¶37} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found that the State presented sufficient

evidence of the economic harm incurred as a result of Pleban’s actions. Pleban’s first

assignment of error is overruled.

ASSIGNMENT OF ERROR II

“PLEBAN WAS DENIED A FAIR TRIAL THROUGH PROSECUTORIAL
MISCONDUCT, MERITING REVERSAL OF HIS CONVICTIONS.”

{¶38} Pleban argues that his convictions must be overturned on the basis of

prosecutorial misconduct. This Court disagrees.

{¶39} When considering whether certain remarks constitute prosecutorial misconduct, a

reviewing court must determine “(1) whether the remarks were improper and (2) if so, whether

the remarks prejudicially affected the accused’s substantial rights.” State v. Jackson, 107 Ohio

St.3d 300, 2006-Ohio-1, at ¶142, citing State v. Smith (1984), 14 Ohio St.3d 13, 14. The Ohio

Supreme Court continued that
 16

“[t]he touchstone of analysis ‘is the fairness of the trial, not the culpability of the
prosecutor.’ This court will not deem a trial unfair if, in the context of the entire
trial, it appears beyond a reasonable doubt that the jury would have found the
defendant guilty even without the improper comments.” (Internal citations
omitted.) Jackson at ¶142.

The prosecutor’s conduct must be considered in the context of the entire trial. See Darden v.

Wainwright (1986), 477 U.S. 168, 181-182.

{¶40} Pleban’s first argues that the assistant prosecutor improperly questioned Mrs.

Pleban during cross-examination by eliciting irrelevant testimony and attempting to impeach her

in contravention of Evid.R. 608. In so doing, he effectively challenges the trial court’s

admission of certain evidence rather than the fairness of the trial from the perspective of

prosecutorial misconduct.

{¶41} An appellant’s captioned assignment of error “provides this Court with a roadmap

on appeal and directs this Court’s analysis.” State v. Marzolf, 9th Dist. No. 24459, 2009-Ohio-

3001, at ¶16. App.R. 16(A)(7) and Loc.R. 7(B)(7) provide that the argument shall contain the

appellant’s contentions with respect to each assignment of error. Loc.R. 7(B)(4) requires an

appellant to include in his brief a statement of the issues which “shall be a succinct, clear, and

accurate statement of the arguments made in the body of the brief.” The issue of the trial court’s

admission of certain evidence is beyond the scope of this captioned assignment of error.

Accordingly, this Court declines to address this argument. See Ulrich v. Mercedes-Benz USA,

L.L.C., 187 Ohio App3d 154, 2010-Ohio-348, at ¶24, citing State v. Ashby, 9th Dist. No.

06CA0077-M, 2007-Ohio-3118, at ¶6 (refusing to address underdeveloped arguments that were

not separately assigned as error).

{¶42} Pleban also asserts that the assistant prosecutor’s questioning of Mrs. Pleban

regarding any plans by her to file a civil lawsuit against the county unfairly prejudiced her
 17

husband’s criminal trial. Pleban fails to develop his argument other than to say that the assistant

prosecutor’s questioning was “clearly calculated to unfairly prejudice [] Pleban’s case, and

would have been grounds for a mistrial, had this case been tried to a jury.” Pleban’s mere

conclusory statement does not substantiate a conclusion by this Court that the line of questioning

merits reversal of his conviction.

{¶43} Assuming arguendo, however, that the assistant prosecutor’s questions on cross-

examination were improper, the remarks did not prejudicially affect Pleban’s substantial rights.

Within the context of the entire trial, this Court concludes that Pleban’s trial was not unfair

because it appears beyond a reasonable doubt that the trier of fact would have convicted Pleban

even in the absence of the State’s improper questioning of Mrs. Pleban. The evidence presented

by the State demonstrates Pleban’s guilt beyond a reasonable doubt. Accordingly, Pleban’s

argument that the assistant prosecutor’s questioning of Mrs. Pleban necessitates reversal of his

conviction must fail.

{¶44} Finally, Pleban argues that the assistant prosecutor’s half-page comment in his

post-trial brief in lieu of closing argument regarding his belief that Mrs. Pleban’s testimony was

incredible further prejudiced his right to a fair trial. Pleban argues that the State again

improperly speculated as to an improper motive by Mrs. Pleban premised on her desire to file a

civil lawsuit against the county.

{¶45} Generally, a prosecutor is allowed wide latitude in the closing argument to present

his most convincing positions to the trier of fact, and “[t]he [trier of fact] should be given credit

for sufficient common sense and sound judgment” to weigh the prosecutor’s words

appropriately. State v. Woodards (1966), 6 Ohio St.2d 14, 26; see, also, State v. Smith, 9th Dist.

Nos. 01CA0039, 01CA0055, 2002-Ohio-4402, at ¶96. “It is well settled that statements made by
 18

counsel in opening statements and closing arguments are not evidence.” State v. Frazier (1995),

73 Ohio St.3d 323, 338. There is a presumption in a bench trial that the trial judge knows and

follows the law, and only considers matter properly before it. State v. Olah (2001), 146 Ohio

App.3d 586, 593. Pleban has not pointed to anything in the record that would overcome that

presumption in this case. His reference to the trial court’s direction to defense counsel to

rehabilitate the witness relates to Mrs. Pleban’s prior testimony regarding statements she made to

law enforcement regarding her husband’s behavior and threats, not the allegedly forthcoming

civil lawsuit. Taken out of context, the trial court’s direction to defense counsel does not support

Pleban’s argument that the assistant prosecutor engaged in misconduct in its questioning of Mrs.

Pleban about a civil lawsuit and that such misconduct infringed on Pleban’s right to a fair trial.

Pleban’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

“PLEBAN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL,
MERITING REVERSAL OF HIS CONVICTIONS.”

{¶46} Pleban argues that he was denied his right to the effective assistance of counsel.

This Court disagrees.

{¶47} This Court uses a two-step process as set forth in Strickland v. Washington

(1984), 466 U.S. 668, 687, to determine whether a defendant’s right to the effective assistance of

counsel has been violated.

“First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id.
 19

{¶48} To demonstrate prejudice, “the defendant must prove that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial would have

been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus.

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466

U.S. at 691.

{¶49} This Court must analyze the “reasonableness of counsel’s challenged conduct on

the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690. The

defendant must first identify the acts or omissions of his attorney that he claims were not the

result of reasonable professional judgment. This Court must then decide whether counsel’s

conduct fell outside the range of professional competence. Id.

{¶50} Pleban bears the burden of proving that counsel’s assistance was ineffective.

State v. Hoehn, 9th Dist. No. 03CA0076-M, 2004-Ohio-1419, at ¶44, citing State v. Colon, 9th

Dist. No. 20949, 2002-Ohio-3985, at ¶49; State v. Smith (1985), 17 Ohio St.3d 98, 100. In this

regard, there is a “strong presumption [] that licensed attorneys are competent and that the

challenged action is the product of a sound strategy.” State v. Watson (July 30, 1997), 9th Dist.

No. 18215. In addition, “debatable trial tactics do not give rise to a claim for ineffective

assistance of counsel.” Hoehn at ¶45, quoting In re Simon (June 13, 2001), 9th Dist. No.

00CA0072, citing State v. Clayton (1980), 62 Ohio St.2d 45, 49. Even if this Court questions

trial counsel’s strategic decisions, we must defer to his judgment. Clayton, 62 Ohio St.2d at 49.

The Ohio Supreme Court has stated:

“‘We deem it misleading to decide an issue of competency by using, as a
measuring rod, only those criteria defined as the best of available practices in the
defense field.’ *** Counsel chose a strategy that proved ineffective, but the fact
that there was another and better strategy available does not amount to a breach of
 20

an essential duty to his client.” Id., quoting State v. Lytle (1976), 48 Ohio St.2d
391, 396.

{¶51} “[A] defendant is not deprived of effective assistance of counsel when counsel

chooses, for strategical reasons, not to pursue every possible trial tactic.” State v. Brown (1988),

38 Ohio St.3d 305, 319, citing State v. Johnson (1986), 24 Ohio St.3d 87. In addition, “the end

result of tactical trial decisions need not be positive in order for counsel to be considered

‘effective.’” State v. Awkal (1996), 76 Ohio St.3d 324, 337.

{¶52} The Ohio Supreme Court has recognized that a court need not analyze both

prongs of the Strickland test, where the issue may be disposed upon consideration of one of the

factors. Bradley, 42 Ohio St.3d at 143. Specifically,

“‘Although we have discussed the performance component of an ineffectiveness
claim prior to the prejudice component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes an insufficient
showing in one. In particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. The object of an ineffectiveness
claim is not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed. Courts should strive to
ensure that ineffectiveness claims not become so burdensome to defense counsel
that the entire criminal justice system suffers as a result.’” Bradley, 42 Ohio St.3d
at 143, quoting Strickland, 466 U.S. at 697.

{¶53} Pleban argues that trial counsel was ineffective for failing to object to the

admission of certain irrelevant or otherwise inadmissible evidence, to wit: (1) recordings of Mrs.

Pleban’s 911 call; (2) recordings of Deputy Eskut’s negotiations with Pleban; and (3)

photographs and testimony regarding the Plebans’ firearms. We reiterate that there is a

presumption that a trial judge knows the law and considers only relevant, material, and

competent evidence during his deliberation. State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-

6624, at ¶57.
 21

{¶54} Moreover, Mrs. Pleban’s 911 call was relevant and not hearsay because it served

to show the effect of Pleban’s threats to harm himself and the couple’s dogs on the alleged

victim of the charge of aggravated menacing. It also served to show the effect on law

enforcement personnel, i.e., it provided the rationale for the deployment of a hostage negotiator,

emergency medical services, and law enforcement personnel.

{¶55} The recorded conversations between Deputy Eskut and Pleban were both relevant

and otherwise admissible pursuant to Evid.R. 801(D)(2) as Pleban’s own statements offered

against him to substantiate the allegations that he knowingly caused his wife to believe that he

would cause serious physical harm to himself and the couple’s dogs.

{¶56} Finally, evidence relating to the existence of the numerous firearms found in

Pleban’s home after his arrest was relevant to demonstrate that Pleban knew that his threats of

serious physical harm might be taken seriously by his wife, the intended victim of the charge of

aggravated menacing. In addition, such evidence was relevant to demonstrate the reasonableness

of the response by law enforcement in establishing road blocks, evacuating neighbors, and

rerouting school buses, all responses which caused serious public inconvenience or alarm. In

addition, the trial court is presumed to have disregarded any evidence deemed merely

cumulative.

{¶57} Pleban has not demonstrated that defense counsel’s failure to object to the

admission of the challenged evidence fell outside the range of professional competence.

Accordingly, this Court need not consider the issue of prejudice. Pleban’s third assignment of

error is overruled.
 22

III.

{¶58} Pleban’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR
FOR THE COURT

WHITMORE, J.
MOORE, J.
CONCUR

APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.