State v. Adams

[Cite as State v. Adams, 2016-Ohio-7772.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY

STATE OF OHIO, :
: Case No. 15CA2
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
JASON M. ADAMS :
:
Defendant-Appellant. : Released: 11/10/16
_____________________________________________________________
APPEARANCES:

James S. Sweeney, James Sweeney Law, LLC, Columbus, Ohio, for
Appellant.

Brigham M. Anderson, Prosecuting Attorney, and Robert C. Anderson,
Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

{¶1} Jason M. Adams appeals from the final judgment entry of

conviction and sentence of the Lawrence County Court of Common Pleas,

entered December 23, 2014. A jury convicted Adams of complicity to

aggravated robbery, R.C. 2923.03/2911.01(A)(3), a felony of the first

degree. Adams raises six assignments of error, arguing: (1) that his

conviction is against the manifest weight of the evidence; (2) that the trial

court ordered an “inconsistent” sentence; (3) that the trial court committed

plain error in permitting the jury to be informed that his codefendants pled
Lawrence App. No. 15CA2 2

guilty; (4) that the trial court failed to properly advise him of post-release

control; (5) that the trial court failed to give him all the required jail time

credit; and, (6) that he was rendered ineffective assistance of counsel.

However, upon our review of the record, we find no merit to Appellant’s

arguments, except for the issue regarding his post-release control

notification. Further, the parties had resolved the issue regarding jail time

credit prior to oral arguments in this matter, so we have declined to consider

that alleged error. As such, we overrule Appellant’s assignments of error

except for assignment of error number four, which we sustain and remand

for further proceedings consistent with current case law. In all other

respects, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} Jason M. Adams was indicted for one count of aggravated

robbery by the Lawrence County Grand Jury on March 25, 2014. The

indictment occurred after Charles Sam Jones (Jones) was robbed on January

14, 2014, near the Central Christian Church in the City of Ironton. On that

date, two church volunteers saw some commotion in front of the church, saw

two men running away, and saw Jones and Appellant, who appeared to have

been robbed.
Lawrence App. No. 15CA2 3

{¶3} Jones, age 77 at the time of trial, was a local “bookie.”

Appellant had placed bets with Jones for approximately four months before

the robbery. The robbery occurred at approximately 8:15 p.m. in the

evening. Sergeant Brian Pauley of the Ironton Police Department responded

to the scene. Detectives Mitch Crum and Joe Ross investigated the robbery.

{¶4} Detective Crum initially obtained surveillance video from

Ironton High School, which faintly showed the robbery taking place and

revealed the “get away” vehicle, a black Dodge Durango. Further

investigation led Detective Crum to ask Appellant to come to the police

department and give a statement, which he did. Appellant, his long-time

friend Scott Lewis, and a third man, Ed Hampton, Lewis’s uncle, were

subsequently indicted for robbing Jones.

{¶5} Appellant’s codefendants eventually entered guilty pleas and did

not proceed to trial. However, Appellant, an Iraq war veteran with no prior

criminal record and good standing in the community, proceeded to trial and

testified on his own behalf. While the State argued Appellant was the

mastermind of the scheme to rob Jones, who was known to carry large

quantities of cash on his person, Appellant denied any involvement and

maintained that he, too, was a victim of crime.
Lawrence App. No. 15CA2 4

{¶6} The State presented testimony from Jones, the

bystanders/witnesses at the church, the officers who investigated Jones’

robbery, Appellant’s codefendant Scott Lewis, and additional witnesses who

identified and explained the State’s exhibits. Essentially, Jones testified that

on the incident date, Appellant arranged an evening meeting with Jones to

pay a gambling debt. Appellant then changed the meeting place a couple of

times. When the two met at the church, Appellant paid Jones the money he

owed and talked briefly. Just after they parted, Lewis and Hampton

approached Jones, robbed him and beat him. Jones testified he immediately

felt he had been “set up” by Appellant. Jones did not know Lewis or

Hampton, but Appellant had recently given him Lewis’s name.

Interestingly, Jones testified that Appellant initially asked him to meet at the

church because it was near the Urgent Care where his wife and child were,

and he was in a hurry. However, after the money was exchanged, Appellant

made conversation and asked Jones if he would like to get a drink.

{¶7} Scott Lewis testified he and Appellant had been friends since

elementary school. While their contact had been sporadic after high school

when Appellant went into the military and Lewis moved to Wyoming, at

times the men talked 10-20 times a day. Lewis had a private cell phone and

a work phone. Prior to the incident, Lewis did not know Sam Jones.
Lawrence App. No. 15CA2 5

{¶8} Lewis testified it was Appellant’s idea to rob Jones. Lewis

testified Appellant needed money to remodel a house and after talking, the

friends agreed to do it. Appellant also asked Lewis to get his uncle, Ed

Hampton, involved. Ed Hampton had a criminal history and Appellant

indicated he would “feel more comfortable” with Hampton involved. On the

incident date, Lewis was working in West Virginia. He borrowed a co-

worker’s dark-colored Dodge Durango, drove to Ironton, and joined

Appellant for lunch at Giovanni’s.

{¶9} After leaving Giovanni’s, Lewis and Appellant spoke by cell

phone while driving around Ironton looking for Jones. Appellant described

Jones’ physical appearance, the vehicle he drove, and his daily routine

matriculating through Ironton. Lewis testified Appellant’s description of

Jones was “key on point.” Appellant also described to Lewis where Jones

kept his money: “Smaller bills in his right pocket, larger bills, hundred and

fifties in his left pocket and he carried large sums of cash on him * * *.”

Lewis drove around Ironton until it got dark. Then he picked up Ed

Hampton.

{¶10} Appellant joined Lewis and Hampton at Johnny on the Spot on

Second Street. Then they went to the Dollar General to purchase toy guns to

use to scare Jones. While the original plan was for Appellant to meet Jones
Lawrence App. No. 15CA2 6

at Johnny on the Spot, Appellant felt there were too many people there, so

they changed the meeting place to Central Christian. Adams drove his own

vehicle to the church. Lewis and Hampton parked at the old Ironton High

School parking lot and walked to the church. Because there were people in

the back, Appellant changed the meeting with Jones to the front.

{¶11} After Appellant and Jones concluded business and Appellant

walked away, Ed Hampton approached Jones from the front and demanded

his money. Lewis was behind. Jones started to fall and Hampton rushed to

get into his left pocket. Lewis testified Appellant rushed back and pretended

he was helping Jones. Then Appellant and Ed Hampton had a “staged” fight

during which Appellant fell and pretended he was hurt. Lewis saw Hampton

hit Jones, so he ran towards the truck. As Lewis ran, he heard someone

yelling that the police were on their way.

{¶12} The State’s exhibits admitted at trial included surveillance film

from Ironton High School; phone records between Appellant and Lewis on

January 13th, 14th, and 15th, 2014; Appellant’s initial statement to the

responding officers; Appellant’s recorded statement at the police

department; surveillance film from Dollar General Store; and photographs of

Jones’ facial injuries after the robbery occurred.
Lawrence App. No. 15CA2 7

{¶13} The defense strategy at trial was to cast Appellant as the model

citizen while casting doubt on the credibility of the Ironton police officers

and Scott Lewis. Appellant’s testimony began by telling the jury that he was

married to his high school girlfriend. They had been together since 1999

and had three children. He joined the United States Marine Corps in 2002,

spent two years in combat in Iraq, and was honorably discharged. He also

had some course work through Hocking College. Appellant had a good

work record and was currently employed with the federal prison system in

Kentucky.1 Appellant was involved with little league football, basketball,

and baseball and had handled the finances for the league. Appellant had no

criminal record.

{¶14} Appellant testified he began placing bets with Jones in October

2013.2 Appellant and Jones met on Tuesdays to pay. Lewis had been with

him on two occasions when he paid Jones. He testified Lewis began asking

him about placing bets with Jones and getting information about Jones,

meeting places, and Jones’ vehicle when the two went to an Ohio State

football game in October 2013.

1
Appellant testified he and his wife were currently going through divorce, due in part to the stress of his
criminal case. He also informed he had been placed on administrative leave from his job since he had been
arrested.
2
He testified Detective Crum placed bets with Jones through a third person.
Lawrence App. No. 15CA2 8

{¶15} Appellant testified that Lewis called him on the January 14,

2014 and told him he was on his way to Ironton. He needed to discuss

“family issues” with Appellant. Appellant invited him to meet him for lunch

at Giovanni’s.

{¶16} Appellant testified Lewis asked him to meet at Johnny on the

Spot at 6:45. Then, they rode around and eventually Lewis asked him to go

with him to pick up Ed Hampton. Appellant had met Ed Hampton a few

times prior. As they drove, Hampton talked about seeing his kids and not

having money to buy them anything. Appellant offered to buy what he

needed so they went to Dollar General to purchase the toy guns for Ed

Hampton’s children. They then dropped Appellant off at Johnny on the

Spot. Appellant denied ever seeing Lewis again until in the courtroom.

{¶17} After Appellant was dropped off, he met Jones at the church.

They talked briefly and he paid Jones. As Appellant was walking to his

vehicle, he looked back and saw Jones on the ground with two people over

him. He did not recognize the people. He ran back to try to help Jones. The

larger individual hit him and he was knocked to the ground. He had a knot

and red place on his head. He gave a brief statement to officers at the scene.

{¶18} The next day Lewis called him and asked him to meet at Burger

King in Ashland, Kentucky. When he went there, Lewis did not show up
Lawrence App. No. 15CA2 9

but Ed Hampton did. Appellant was friends with some of the Ironton police

officers. Also on the day after the incident, Appellant was contacted by his

friends and asked to come to the police department. Appellant gave a

statement at that time. He testified he tried to answer the officers’ questions

but they kept cutting him off.

{¶19} Appellant denied planning the hit on Jones. He denied being

asked to be involved. He denied needing money to remodel. Appellant

testified there was “nothing ever discussed about hitting Sam Jones. No not

specifically.” Appellant believed, looking back, he was naive in trusting

Lewis with Jones’ information. Appellant testified he, too, was a victim of

crime and had lost $1,500.00 dollars.

{¶20} The jury convicted Appellant of complicity to aggravated

robbery on December 12, 2014. The trial court sentenced Appellant to a

nine-year prison term. This timely appeal followed.

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ERRED WHEN IT ENTERED A
JUDGMENT AGAINST THE APPELLANT WHEN THE
JUDGMENT WAS NOT SUPPORTED BY THE MANIFEST
WEIGHT OF THE EVIDENCE.”

A. Standard of Review

{¶21} When an appellate court considers a claim that a conviction is
Lawrence App. No. 15CA2 10

against the manifest weight of the evidence, the court must dutifully

examine the entire record, weigh the evidence and all reasonable inferences,

and consider the witness credibility. State v. Pickett, 4th Dist. Athens No.

15CA13, 2016-Ohio-4593, ¶ 26; State v. Dean, 2015-Ohio-4347, ¶ 151,

citing Thompkins, 78 Ohio St.3d at 387. A reviewing court must bear in

mind, however, that credibility generally is an issue for the trier of fact to

resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.

Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because

the trier of fact sees and hears the witnesses and is particularly competent to

decide “whether, and to what extent, to credit the testimony of particular

witnesses,” we must afford substantial deference to its determinations of

credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929

N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No.

21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd Dist.

Montgomery No. 16288 (Aug. 22, 1997).

{¶22} Once the reviewing court finishes its examination, the court

may reverse the judgment of conviction only if it appears that the fact-finder,

when resolving the conflicts in evidence, “ ‘clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered .’ ” Pickett, supra, at 27, quoting Thompkins, 78
Lawrence App. No. 15CA2 11

Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). If the prosecution presented substantial credible

evidence upon which the trier of fact reasonably could conclude, beyond a

reasonable doubt, that the essential elements of the offense had been

established, the judgment of conviction is not against the manifest weight of

the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978),

syllabus, (superseded by state constitutional amendment on other grounds in

State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997)).

{¶23} “[W]hen conflicting evidence is presented at trial, a conviction

is not against the manifest weight of the evidence simply because the jury

believed the prosecution’s testimony.” State v. Cooper, 170 Ohio App.3d

418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 17, quoting State v. Mason, 9th

Dist. No. 21397, 2003-Ohio-5785, ¶ 17, quoting State v. Gilliam, 9th Dist.

No. 97CA006757, 1998 WL 487085 (Aug. 12, 1998). Moreover, a

conviction is not against the manifest weight of the evidence even if the

“evidence is subject to different interpretations.” State v. Adams, 2nd Dist.

Greene Nos. 2013CA61, 2013-CA-62, 2014-Ohio-3432, ¶ 24. Instead, a

reviewing court should find a conviction against the manifest weight of the

evidence only in the “ ‘exceptional case in which the evidence weighs

heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, quoting
Lawrence App. No. 15CA2 12

Martin, 20 Ohio App.3d at 175. Accord State v. Lindsey, 87 Ohio St.3d 479,

483, 721 N.E.2d 995 (2000).

B. Legal Analysis

{¶24} Appellant was found guilty of complicity to aggravated

robbery. The Revised Code defines the offense of aggravated robbery as

follows:

(A) No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing
immediately after the attempt or offense, shall do any of the
following:

***

(3) Inflict, or attempt to inflict, serious physical harm on
another.3

{¶25} Appellant argues his conviction is not supported by the

manifest weight of the evidence as the State failed to establish either that the

victim, Sam Jones, suffered serious physical harm, or that there was an

attempt to inflict serious physical harm upon him. “Serious physical harm”

is defined under R.C. 2901.01(A)(5)(c), (d), and (e) as including harm that

produces “temporary, substantial incapacity”, “temporary, serious

3
(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any
of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
Lawrence App. No. 15CA2 13

disfigurement”, or “acute pain of such duration as to result in substantial

suffering or that involves any degree of prolonged or intractable pain.” State

v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 23. The State

disputes Appellant’s argument, contending that Sam Jones suffered

“temporary, serious disfigurement” and “physical pain of such duration as to

result in substantial suffering.” The State relies on Jones’ testimony that he

was struck multiple times in the head area which resulted in the injuries

depicted in State’s Exhibits 16-19. We agree with the State. We find there

was substantial credible evidence upon which a jury could find beyond a

reasonable doubt that serious physical harm was inflicted upon Mr. Jones.

{¶26} “The degree of harm that rises to the level of ‘serious’ physical

harm is not an exact science, particularly when the definition includes such

terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’ ” State v.

Mango, 8th Dist. Cuyahoga No. 103146, 20156-Ohio-2935, ¶ 33, quoting

State v. Miller, 8th Dist. Cuyahoga No. 98574, 2013-Ohio-1651, ¶ 18,

quoting State v. Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996,

¶ 37. The statute does not define “substantial suffering”; instead, the trier-

of-fact must determine its existence from the facts of each particular case.

State v. Bell, 1989 WL 10372, (Feb. 7, 1989), *2. See State v. Daniels

(1984), 14 Ohio App.3d 41, (victim's testimony that defendant punched and
Lawrence App. No. 15CA2 14

kicked her was sufficient to prove serious physical harm); see also State v.

Spikes, 67 Ohio St.2d 405, 414, 423 N.E.2d 1122, (1981), fn.10 (dicta).

“Physical harm to persons” means “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). State

v. Henry, 8th Dist. Cuyahoga No. 10002634, 2016-Ohio-692, ¶ 40. The

extent or degree of a victim's injuries is “normally a matter of the weight

rather than the sufficiency of the evidence.” Henry, supra; Irwin at ¶ 37,

citing State v. Salemi, 8th Dist. Cuyahoga No. 81091, 2002-Ohio-7064, ¶ 34.

{¶27} Scott Lewis testified that during the altercation, he was behind

Mr. Jones, who “started to fall back” and eventually was on the ground.

Lewis testified that “when Sam went to sit up, Ed hit Sam Jones and Sam

fell back down.” Mr. Jones testified as follows:

“A. * * * That’s about that time that’s all I can remember and
the guys running and he had a hold of me before I could turn
around or anything. They had me on the ground.

Q. And were you hit?

A. Quite a few times yeah.

Q. And beat up pretty bad?

A. Beat up. . . worse I’ve ever been beat up, yeah.

Q. Describe to the jury what your injuries were from that.

A. Well I had two of them, black eyes and the side of my
face was all skinned up where they hit me and my forehead, had
Lawrence App. No. 15CA2 15

a place inside my mouth they busted, I think there was six or
eight stitches that had to be put in my lip. And um, broke my
teeth, had false teeth and they broke them. And um, I was just
lucky that um, we had two guys come around the building to
save my life by coming around and heard them say that
someone was coming. They got up off me and took off
running.

{¶28} The State’s exhibits 16, 17, 18, and 19 depict Jones’ injuries.

The photographs reveal bruising under both eye areas. Bruising is more

noticeable on the right side of Jones’ face, with obvious injuries on the right

temple, right cheekbone, and right jaw. Also visible in the photographs are

small marks on Mr. Jones’ forehead, nose, and chin, as well as an injury to

the lip area. At the time of the incident, Jones was 76 years old.

{¶29} In Scott, the defendant was charged with felonious assault and

domestic violence after an altercation with his live-in girlfriend. At trial, the

victim testified in great detail about the injuries she sustained. Specifically,

she testified that her left eye was swollen shut for three weeks following the

incident, that she broke her nose and lost teeth as a result of the incident, and

that a blood clot developed under her eye. The State corroborated the

victim’s description of her injuries by introducing photographs of them. In

Scott’s appeal challenging the proof of “serious physical harm,” we

concluded these types of injury constitute “temporary, substantial
Lawrence App. No. 15CA2 16

incapacity” and “temporary, serious disfigurement” as those words are

commonly understood.

{¶30} Courts have also determined that “serious physical harm” exists

“ ‘where the injuries caused the victim to seek medical treatment.’ ” Scott,

supra, at ¶ 3. State v. Muncy, 4th Dist. Scioto No. 11CA3434, 2012-Ohio-

4563, ¶ 23, quoting State v. Sharp, 12th Dist. Butler No. CA2009-09-236,

2010-Ohio-3470, ¶ 11. See also Mango, supra, at ¶ 34. In Scott, the

testimony established that the victim did visit a hospital. We ultimately held

that sufficient evidence of serious physical harm existed. In the case sub

judice, Sam Jones did not seek medical treatment immediately after the

incident. However, he did testify to having 6-8 stitches in his lip. We note

that on cross-examination, Appellant’s wife Nicole Adams, herself a nurse,

agreed it would have been a good idea for Jones to go to the hospital, that he

was “beaten up pretty good.” She felt his injuries were serious enough that

he needed to go to the hospital “because of his age.”

{¶31} In Henry, the defendant was charged and convicted of felonious

assault. On appeal, Henry argued there was no evidence that the victim,

Gatto, suffered from any degree of prolonged or intractable pain or was in

any way incapacitated by his cut lip or “bent in” teeth; no evidence the

victim missed any school or work or was precluded from engaging in any of
Lawrence App. No. 15CA2 17

his other ordinary activities as a result of his injury; and no evidence the

victim had a scar or any other type of permanent disfigurement. The

appellate court was left to determine whether the injury to the victim’s upper

lip “involve[d] acute pain of such duration as to result in substantial

suffering” within the meaning of R.C. 2901.01(A)(5)(e) or a “temporary,

serious disfigurement” under R.C. 2901.01(A)(5)(d).

{¶32} Photographs taken by an officer at the hospital showed Gatto

with a bloodied, swollen upper lip that appeared to be cut in two places. The

victim testified that he was in “excruciating pain” when he arrived at the

hospital and the medical records reflect that Gatto told the hospital staff that

his pain level was six out of ten at that time. The victim testified that, as

result of Henry's punch, his front teeth were “bent in,” that he received 30

stitches and that he saw the “medical surgeon” “about five times” and his

family dentist twice for his injuries. Viewing the evidence in the light most

favorable to the State, the appellate court found that the victim’s testimony,

together with the photographs and medical records introduced by the State,

was sufficient to establish that Henry caused him serious physical harm

under R.C. 2901(A)(5)(d) or (e).

{¶33} Henry also made a manifest weight challenge based on the

absence of medical evidence corroborating the victim’s testimony regarding
Lawrence App. No. 15CA2 18

the severity of his injuries and the treatment he received; the lack of

evidence of any permanent scarring; and criticisms regarding inconsistencies

in, and the lack of credibility of, Gatto’s testimony.

{¶34} The appellate court noted the severity of Gatto's injury was

unclear based on the photographs alone. Although Gatto claimed to have

needed 30 stitches in and around his lip to repair the injury, there was no

reference to Gatto having received any stitches in the medical records. Gatto

testified that as a result of the punch he received from Henry his two front

teeth were also “bent in”; however, there were no photographs of any

damage to the victim’s teeth and no testimony or other evidence in the

record explaining what the victim meant when he said that his two front

teeth were “bent in” or how, if at all, that condition was remedied. And,

although Gatto claimed to have seen the “medical surgeon” “about five

times” and his family dentist twice for the injuries he sustained, there were

no medical records documenting any of his alleged follow-up treatment and,

other than the victim’s own testimony that a “plastic surgeon” removed his

stitches without further testimony as to when that occurred what follow-up

treatment involved. The record contained only Gatto's medical records from

the emergency room where he had presented for treatment. No medical

expert or medical provider testified.
Lawrence App. No. 15CA2 19

{¶35} The appellate court acknowledged a number of credibility

issues with Gatto's testimony. However the court concluded:

“[A] defendant is not entitled to reversal on manifest weight
grounds merely because certain aspects of a witness's testimony
are not credible or were inconsistent or contradictory. See, e.g.,
State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574,
¶ 38, citing State v. Asberry, 10th Dist. Franklin No. 04AP-
1113, 2005-Ohio-4547, ¶ 11. The decision whether, and to
what extent, to believe the testimony of a particular witness is
“within the peculiar competence of the factfinder, who has seen
and heard the witness.” State v. Johnson, 8th Dist. Cuyahoga
No. 99822, 2014-Ohio-494, ¶ 54. It was, therefore, within the
province of the trial court, as the trier of fact, to believe Gatto's
testimony regarding the severity of his injuries and to find that
he sustained serious physical harm as a result of Henry's
actions. It is not our role to substitute our judgment for that of
the trial judge.”

{¶36} In Henry at 40, the appellate court acknowledged it had

“historically applie[d] a liberal interpretation of ‘serious physical harm to

persons.’ ” State v. Davis, 8th Dist. Cuyahoga No. 81170, 2002-Ohio-7068,

¶ 20. The appellate court also stated that the fact that a victim seeks medical

treatment does not alone “substantiate [ ] an inference that the victim

suffered serious physical harm” and that although “[t]he inference derived

from a victim seeking medical treatment is a proper factor to consider,” it is

“not a dispositive one.” State v. Clopton, 8th Dist. Cuyahoga No. 95297,

2011-Ohio-2392, ¶ 14-16. For an injury to constitute “serious physical

harm,” it must fall within at least one of the five categories enumerated in
Lawrence App. No. 15CA2 20

R.C. 2901.01(A)(5)(a)-(e). See, e.g., State v. Addison, 8th Dist. Cuyahoga

No. 96514, 2012-Ohio-260, ¶ 29.

{¶37} In Henry, the court was mindful that “[t]his court has

consistently held that the need for stitches constitutes serious physical harm

for purposes of a felonious assault conviction.” Id. at 42. State v. Studgions,

8th Dist. Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 10. However, the court

acknowledged in most cases, it appears that it was not simply the fact that

the victim received stitches that led the court to conclude that the victim

sustained “serious physical harm” within the meaning of R.C.

2901.01(A)(5), but rather, the fact that, as is often the case with an injury

requiring stitches, the injury and stitches led to a permanent scar or

disfigurement.4 However, the Henry court observed that serious physical

harm has been found where a victim sustains a bloody cut and/or significant

swelling to the face, even where there is no evidence stitches were required.

Henry, supra, at 42; See, e.g., State v. Payne, 8th Dist. Cuyahoga No. 76539,

4
See Studgions at ¶ 10; Williams at ¶ 10; State v. Paythress, 8th Dist. Cuyahoga No. 91554, 2009-Ohio-
2717, ¶ 6-7 (finding serious physical harm when the medical records documented that victim sustained a
three-to-four-inch cut on his face that required 60 stitches to close and victim was able to point out his
injury to the jury, “suggesting that he suffered some permanent disfigurement as a result of the attack”); see
also State v. Townsend, 9th Dist. Summit No. 24311, 2009-Ohio-3190, ¶ 10-12 (victim's testimony that
defendant slapped her, punched her in the mouth, hit her in the face and spit on her, leaving her lip bleeding
and hanging, requiring stitches and resulting in a permanent scar and lack of feeling in her lip was
sufficient to establish “serious physical harm” under R.C. 2901.01(A)(5)); State v. Edwards, 83 Ohio
App.3d 357, 360, 614 N.E.2d 1123 (1992) (where victim received 23 stitches for two-centimeter cut above
his right eyebrow, which resulted in a permanent scar, and the reopening of a one-centimeter scar on his
forehead, jury could reasonably find victim sustained some permanent disfigurement constituting “serious
physical harm”).
Lawrence App. No. 15CA2 21

2000 WL 1010969 *9-10 (July 20, 2000) (bloody, cut and swollen right eye

was sufficient to establish serious physical harm because the injury was a

temporary, serious disfigurement).

{¶38} We have reviewed the photographs of Mr. Jones’ injuries and

the testimony of various witnesses describing his injuries. At the time Mr.

Jones’ face and head were beaten, he was approximately 76 years old. Sgt.

Pauley testified when he arrived on the scene and encountered the elderly

victim, he appeared to have been “beaten up.” Pauley described “some

bleeding from one of the eyebrows, and some swelling around his eye.” Eric

Williams, one of the church witnesses, testified Mr. Jones was injured and

had “blood on his head.” Appellant’s wife testified Jones “had a busted lip,”

and was “starting to bruise.” Even she testified she had recommended he

seek medical attention.

{¶39} The photos reveal bruising on the right side of Jones’ face. In

our view, recognizing these determinations are “case by case” and “not an

exact science,” Jones’ facial bruising and lip injury constitute a temporary

serious disfigurement and pain resulting in substantial suffering. “ ‘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.’ ” Id. at
Lawrence App. No. 15CA2 22

¶ 21, quoting 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). While the evidence here is subject

to more than one interpretation, the jury obviously found Mr. Jones’

testimony about his injuries, without the inclusion of medical records to

verify the need for 6-8 stitches, to be credible. We must afford substantial

deference to the jury’s determination of credibility.

{¶40} We find this case not to be one in which the jury clearly lost its

way so as to create a manifest miscarriage of justice. We find substantial

credible evidence that Sam Jones suffered serious physical harm. As such,

we overrule Appellant’s first assignment of error and affirm the judgment of

the trial court.

“II. THE TRIAL COURT ERRED IN IMPOSING A
SENTENCE OF NINE YEARS ON THE APPELLANT.”

A. Standard of Review

{¶41} When reviewing felony sentences we apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Taylor, 138 Ohio St.3d 194,

2014-Ohio-460, 5 N.E.3d 612, ¶ 40; State v. Marcum, 2016-Ohio-1002, –––-

N.E.3d ––––, ¶ 1. R.C. 2953.08(G)(2) specifies that an appellate court may

increase, reduce, modify, or vacate and remand a challenged felony sentence

if the court clearly and convincingly finds either that “the record does not
Lawrence App. No. 15CA2 23

support the sentencing court's findings” under the specified statutory

provisions or “the sentence is otherwise contrary to law.” Id.

B. Legal Analysis

{¶42} Appellant argues the trial court erred in imposing a sentence of

nine years. Appellant points out that codefendant Scott Lewis was

sentenced to a term of five years in prison, and codefendant Ed Hampton

was sentenced to a term of six years. In support of the argument, Appellant

points out that the record established that Appellant’s codefendants were

those responsible for physically harming the victim while Appellant never

physically harmed him. Furthermore, Appellant had no felony record as

compared to Ed Hampton. As such, Appellant concludes that his sentence is

not supported by the record and is contrary to law.

{¶43} The State’s first argument in response is that Appellant failed to

raise the issue of consistency at sentencing and did not present any evidence

in the trial court about similar offenders and their sentences. The State

directs us to the transcript of Appellant’s sentencing hearing in support.

Based on the authority of State v. Miller, 2nd Dist. Clark No. 09CA28,

2010-Ohio-2138, the State contends Appellant has forfeited his ability to

raise this issue on appeal. Secondly, the State contends that the trial court

was not obligated to impose a similar sentence on Appellant because: (1)
Lawrence App. No. 15CA2 24

Appellant is the one who masterminded the robbery; (2) planned the details;

and (3) never acknowledged his guilt or any remorse. Finally, the State

argues that R.C. 2929.11(B), with its inconsistency language, has no merit

when a trial court states that it has considered the purposes and principles of

sentencing in accordance with R.C. 2929.11, 2929.12, and has weighed the

applicable factors in R.C. 2929.13 and R.C. 2929.14.

{¶44} The language of R.C. 2929.11(B) provides that a felony

sentence must be “consistent with sentences imposed for similar crimes

committed by similar offenders.” In State v. Gibson, 8th Dist. Cuyahoga

No. 98725, 2013 WL 5517927, the appellate court observed that there is no

requirement that codefendants receive equal sentences. Id. at ¶ 76, citing

State v. Wickham, 5th Dist. Muskingum No. CT2006-0084, 2007-Ohio-

1754, ¶ 29, citing State v. Lloyd, 11th Dist. Lake No. 2002-L-069, 2003-

Ohio-6417, ¶ 21 and United States v. Fry (C.A.6, 1987), 831 F.2d 664, 667.

“Each defendant is different and nothing prohibits a trial court from

imposing two different sentences upon individuals convicted of similar

crimes.” Wickham at ¶ 29, citing State v. Aguirre, 4th Dist. Gallia No.

03CA5, 2003-Ohio-4909, at ¶ 50. When that happens, “the task of the

appellate court is to determine whether the sentence is so unusual as to be

outside the mainstream of local judicial practice. We bear in mind that
Lawrence App. No. 15CA2 25

although offenses may be similar, there may be distinguishing factors that

justify dissimilar sentences.” State v. Beasley, 8th Dist. Cuyahoga No.

82884, 2004-Ohio-988, ¶ 24 (internal citation omitted).

{¶45} In Gibson, the defendant raised a “consistency” argument. The

Gibson court noted that in order to support a contention that a sentence is

disproportionate to sentences imposed upon other offenders, the defendant

must raise this issue before the trial court and present some evidence,

however minimal, in order to provide a starting point for analysis and to

preserve the issue for appeal. State v. Jones, 8th Dist. Cuyahoga No. 99121,

2013-Ohio-3141, ¶ 17, citing State v. Edwards, 8th Dist. Cuyahoga No.

89181, 2007-Ohio-6068. In Gibson, the record revealed that Gibson's

counsel did not make any proportionality argument. The appellate court

summarily overruled Gibson’s assignment of error.

{¶46} Likewise, in State v. Montanez-Roldon, 8th Dist. Cuyahoga No.

103509, 2016 WL 2941098, the appellate court observed that “[a]

consistency-in-sentencing determination, along with all sentencing

determinations pursuant to R.C. 2929.11 and 2929.12, is a fact-intensive

inquiry that does not lend itself to being initially reviewed at the appellate

level.” Id. at ¶ 14. The court held:

“[A]ny review must begin with the defendant producing a
record for the trial court's consideration before the final
Lawrence App. No. 15CA2 26

sentence is imposed. As courts have long concluded, a
“defendant must raise [the consistency-in-sentencing] issue
before the trial court and present some evidence, however
minimal, in order to provide a starting point for analysis and to
preserve the issue for appeal.” (Emphasis added.) State v.
Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37,
citing State v. Lang, 8th Dist. Cuyahoga No. 92099, 2010-Ohio-
433; State v. Picha, 8th Dist. Cuyahoga No. 102506, 2015-
Ohio-4380, ¶ 9. Without evidence provided on the record at
sentencing upon which to base an R.C. 2929 .11(B) argument
on appeal, and without any other arguments for us to consider
for the purpose of declaring Montanez–Roldon's sentence
contrary to law, we cannot review his final sentence as being
contrary to law pursuant to R.C. 2953.08(A)(4).”

{¶47} We have completely reviewed the transcript of Appellant’s

sentencing. It is true the transcript is devoid of any mention of Appellant’s

codefendants’ sentences or that Appellant’s sentence was inconsistent. As

such, we could summarily overrule the assignment of error. However, in the

interests of justice, we would point out that even a cursory review

demonstrates that the trial court weighed the purposes and principals of R.C.

2929.11 and the seriousness and recidivism factors of R.C. 2929.12. The

trial court also stated it was taking into consideration Appellant’s military

service, pursuant to R.C. 2929.14.

{¶48} Furthermore, Appellant was subject to a maximum sentence of

eleven years for aggravated robbery. The State had recommended a ten-year

sentence. The trial court noted Appellant’s previous lack of a criminal

record and his military service when it imposed the nine-year prison
Lawrence App. No. 15CA2 27

sentence. Appellant’s sentence was within the range for a felony of the first

degree. 2929.14(A)(1).

{¶49} For the foregoing reasons, we find no merit to Appellant’s

argument that his sentence was inconsistent with those of his codefendants.

We therefore overrule the second assignment of error and affirm the

judgment of the trial court.

“III. THE TRIAL COURT COMMITTED PLAIN ERROR IN
PERMITTING INFORMATION THAT APPELLANT’S
CODEFENDANTS HAD PLEAD (SIC) GUILTY.”

A. Standard of Review

{¶50} At trial, Appellant’s counsel failed to object to the introduction

of evidence that Appellant’s codefendants Scott Lewis and Ed Hampton had

already entered pleas. A failure to object at trial constitutes a waiver of all

but plain error of the issues on appeal. Gibson, supra, at ¶ 83, citing State v.

Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977). Under Crim.R.

52(B), plain errors affecting substantial rights may be noticed by an

appellate court even though they were not brought to the attention of the trial

court. Gibson supra, at ¶ 84. To constitute plain error, there must be an

error that is plain or obvious and that affected the outcome of the case. Id; In

re: J.G., 8th Dist. Cuyahoga No. 98625, 2013-Ohio-583, ¶ 10, citing State v.

Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Courts are
Lawrence App. No. 15CA2 28

to notice plain error under Crim.R. 52(B) “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Id.

B. Legal Analysis

{¶51} Appellant argues that at his trial, the jury was often informed of

the fact that his codefendants Scott Lewis and Ed Hampton had already

pleaded guilty. This was pointed out in opening statements, during Lewis’

direct testimony, and during closing argument, and in the jury instructions.

Appellant argues disclosing their pleas rises to the level of plain error

because his defense was that he, too, was a victim of crime. Lewis and

Appellant had been friends since childhood. Lewis’s guilt was critical to

linking Appellant with the robbery. Appellant submits there was no valid

tactical consideration and the trial court’s limiting instruction on the

inclusion of the codefendants’ pleas were insufficient.

{¶52} In response, the State argues that it is sound and common trial

strategy by a defendant to bring to the attention of the jury that a

codefendant has already entered a plea in order to impeach the codefendant’s

testimony. The State’s purpose, which was proper, was to introduce the

evidence of codefendant’s plea in order to lessen the impact of the

information on the jury, and to let the jury know “up front,” that Lewis had a
Lawrence App. No. 15CA2 29

plea agreement with the State. The State points out that defense counsel’s

closing argument obviously and strategically utilized this information in

order to cast doubt on Lewis’s credibility.

{¶53} The Eighth Appellate District set forth a careful analysis of this

argument and the law to be applied in State v. Kartsone, 8th Dist. Cuyahoga

No. 95104, 2011-Ohio-1930. There, Kartsone was convicted of three counts

of felonious assault. Kartsone’s codefendant had entered a plea but did not

testify. At trial, Kartsone stipulated that his codefendant’s written statement

would be read to the jury. After both sides presented their cases, the State

requested the trial court to take judicial notice that the codefendant had

previously entered a guilty plea. Kartsone objected but the trial court

overruled. The trial court took judicial notice of the fact of the plea just

before closing arguments. Then in rebuttal, the State strategically

emphasized the fact of the plea. On appeal, Kartsone argued the trial court

erred to his prejudice.

{¶54} The Kartsone appellate court began by citing a long-standing

rule that information that a codefendant has pleaded guilty to or has been

convicted of an offense stemming from the same facts or circumstances

forming the basis of a prosecution against another is inadmissible as proof

against the other. Id. at 31. See Kazer v. Ohio, 5 Ohio 280, 281-282, 1831
Lawrence App. No. 15CA2 30

WL 97 (1831). This is because evidence that another pleaded guilty to or

was convicted of an offense stemming from the same facts or circumstances

is not necessarily evidence that the other committed the same offense. Id.

“There are strong considerations against using a
coconspirator's guilt as substantive evidence of another
defendant's guilt. ‘The foundation of [this] policy is the right of
every defendant to stand or fall with the proof of the charge
made against him, not against somebody else * * *. The
defendant has a right to have his guilt or innocence determined
by the evidence presented against him, not by what has
happened with regard to a criminal prosecution against
someone else.’ ” Kartsone at ¶ 32, quoting State v. Smith, 148
Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, quoting
United States v. Gambino (C.A.3, 1991), 926 F.2d 1355, 1363.

The Kartsone court explained, as in United States v. Toner, 173 F.2d 140,

142 (1949): “From the common sense point of view a plea of guilty by an

alleged fellow conspirator is highly relevant upon the question of the guilt of

another alleged conspirator. If A's admission that he conspired with B is

believed, it is pretty hard to avoid the conclusion that B must have conspired

with A.” Id. at 33. However, Kartsone pointed out:

“This is not to say that evidence of a codefendant's guilty plea
is never admissible. In some circumstances, evidence of a
codefendant's guilty plea may go to the jury if its use is limited
to other purposes such as impeachment, or to show that the
state has nothing to hide in its plea agreements. See, e.g.,
United States v. King (C.A.5, 1974), 505 F.2d 602, United
States v. Hilton (C.A.11, 1985), 772 F.2d 783, 787. The test
most often used to determine the admissibility of a
codefendant's guilty plea was set forth in United States v. Casto
(C.A.5, 1989), 889 F.2d 562, 567. This test requires a
Lawrence App. No. 15CA2 31

reviewing court to consider (1) whether a limiting instruction
was given; (2) whether there was a proper purpose in
introducing the fact of the guilty plea; (3) whether the plea was
improperly emphasized; (4) whether the plea was used as
substantive evidence of guilt; and (5) whether the introduction
of the plea was invited by defense counsel.” Kartsone, supra, at
¶ 34.

{¶55} The Kartsone court analyzed the defendant’s argument and the

case law set forth in Casto, beginning with the fact that the trial court did not

instruct the jury with a limiting instruction regarding the codefendant’s

guilty plea, as well as the fact Kartsone did not request one. The Kartsone

court observed the model jury instruction of the Eighth Circuit states as

follows:

“ ‘You have heard evidence that witness (name) has pleaded
guilty to a crime which arose out of the same events for which
the defendant is on trial here. You must not consider that guilty
plea as any evidence of this defendant's guilt. You may
consider that witness's guilty plea only for the purpose of
determining how much, if at all, to rely upon that witness's
testimony.’ Id. at 38.

{¶56} The Committee Comments following this instruction provide an

explanation:

“ ‘Evidence that a codefendant has pleaded guilty may not be
used as substantive proof of a defendant's guilt. However, such
evidence is admissible to impeach, to show the witness's
acknowledgment of participation in the offense, or to reflect on
his credibility. In such circumstance the jury should be
instructed that the evidence is received for one or more of these
purposes alone, and that the jurors are not to infer the guilt of
Lawrence App. No. 15CA2 32

the defendant.’ ” (Internal citations omitted.) Smith at 280-281,
772 N.E.2d 1225 (Karpinski, J., concurring).
Kartsone, supra, at ¶ 40.

{¶57} As indicated above, Kartsone did not request a limiting

instruction. The Kartsone court noted the Second Appellate District has

held that “ ‘[t]he admission of such evidence without a limiting instruction is

not reversible error if defense counsel does not request an instruction and if

the evidence was introduced for a proper purpose.’ ” Id. at 41, quoting

Clark, supra, and Gerberding, supra.

{¶58} The appellate court determined although Kartsone did not

request a limiting instruction that did not end the analysis. The court looked

to the remaining factors to determine if the trial court erred by allowing

evidence of his codefendant’s plea to be submitted to the jury. The court

next analyzed whether or not there was a proper purpose in introducing the

evidence. “ ‘Guilty pleas of codefendants should be brought to the attention

of the jury in only certain narrow instances; i.e., when it is used to impeach

trial testimony or to reflect on a witness' credibility in accordance with the

standard rules of evidence; where other codefendants plead guilty during

trial and are conspicuously absent; where opposing counsel has left the

impression of unfairness which raises the issue or invites comment on the
Lawrence App. No. 15CA2 33

subject.’ ” Clark, supra, quoting United States v. Bryza (C.A.7, 1975), 522

F.2d 414. In Kartsone, the court found no proper purpose applied.

{¶59} Kartsone also discussed factors three and four, “improper

emphasis” or “substantive evidence.” The State emphasized it only

mentioned the plea one time during its closing argument and that it merely

reiterated what the trial court had already told the jury. However, the

appellate court was not persuaded. The court noted the State strategically

mentioned the codefendant’s plea at the end of its rebuttal closing argument

to the jury – the very last thing it argued to the jury – when it likely had the

most impact. The State specifically argued the evidence in its rebuttal

argument. After reviewing the record, the appellate court found that the

State strategically placed an improper emphasis on the plea and court held:

“The state's only purpose in mentioning [the codefendant’s]
guilty plea at that point was to provide substantive evidence of
Kartsone's guilt. The state was asking the jury to infer that
because [his codefendant] pleaded guilty, Kartsone must be
guilty. This is strictly prohibited under all circumstances.” Id.

{¶60} Kartsone analyzed the final Casto factor, whether introduction

of the plea was invited by something defense counsel did. The trial court

seemed to allude to the fact that it believed defense counsel did invite the

introduction of the plea because defense counsel stipulated to the

codefendant’s statement being read to the jury. But defense counsel did not
Lawrence App. No. 15CA2 34

mention the written statement in its opening remarks or closing argument.

The appellate court found no invited error and concluded that four out of the

five Casto factors were in Kartsone's favor.

{¶61} The Kartsone court went on to determine whether the error was

harmless. Any error will be deemed harmless if it did not affect the

accused's “substantial rights.” Id. at 63. When a guilty plea of a codefendant

is brought to a jury's attention without any guiding instructions as to its use

in their deliberations, the potential for misuse is manifest. Kartsone at 70;

State v. Stefanelli (N.J.1979), 78 N.J. 418, 396 A.2d 1105, 1113. The

appellate court concluded that the error was not harmless beyond a

reasonable doubt under the facts and circumstances of the case. The court

found Kartsone was entitled to a new trial.

{¶62} While the Kartsone opinion provides us a very detailed

analysis, other cases have applied the Casto test and have done so in a more

generalized or summary fashion. In State v. Holbrook, the defendant was

convicted by a jury of complicity to commit felonious assault, complicity to

tampering with evidence, and obstructing justice. At trial, the jury had been

informed that a codefendant had already “taken his lumps.” On appeal,

Holbrook argued that the statement was prejudicial and compromised a fair

trial.
Lawrence App. No. 15CA2 35

{¶63} After discussing the test set forth in Casto and Kartsone, the

appellate court noted there was no argument concerning invited error. The

court first considered whether a limiting instruction was given and whether

the information was used as substantive evidence of guilt. The court further

noted that the challenged information was introduced in closing argument,

not during the trial.

{¶64} Upon review of the transcript, the Holbrook court found that the

trial court informed the jury, generally, that the statements of counsel in

closing arguments “are not to be considered as evidence.” Id. at 36. The

court further instructed the jury “[t]he defendant must be found not guilty

unless the State produces evidence, which convinces you beyond a

reasonable doubt of every essential element of the offense charged in the

indictment.” Id. The Holbrook court found the limiting instruction sufficient

because the information was produced in closing argument and not used as

substantive evidence of guilt. Id.

{¶65} Holbrook next considered whether there was a proper purpose

in introducing the fact of the guilty plea and whether it was improperly

emphasized. Once during closing argument, the State implied that the

codefendant had been found guilty of attempted murder. It has long been

held that “no person shall be bound by a judgment but him who has had an
Lawrence App. No. 15CA2 36

opportunity to be heard in the cause concluded by the judgment.” Holbrook

supra, at 37, quoting Kazer at 282. The court found that it was improper for

the prosecution to reference the specific disposition of the codefendant's case

in this matter. However, the information was not improperly emphasized

and Holbrook was eventually acquitted of conspiracy to commit murder and

conspiracy to commit attempted murder. The Holbrook court concluded that

after consideration of all of the factors set forth in the Casto test, the

prosecutor's statement was improper. However, the court did not believe the

prosecutor's actions prejudicially affected appellant's substantial rights.

{¶66} In State v. Clement, 8th Dist. Cuyahoga No. 94869, 2012-Ohio

582, the defendant was convicted of multiple charges including aggravated

murder, murder, aggravated robbery, and kidnapping in conjunction with a

drug deal involving multiple parties which had gone awry. The Eighth

District Appellate Court considered Clement’s argument on appeal that the

introduction of his two codefendants’ convictions was error. Clement

asserted that the trial court should have instructed the jury that his

codefendants' pleas of guilty or convictions could not be considered as

substantive evidence of Clement's guilt. Citing Kartsone and Clark, supra,

the appellate court observed:

“ ‘[T]he admission of such evidence without a limiting
instruction is not reversible error if defense counsel does not
Lawrence App. No. 15CA2 37

request an instruction and if the evidence was introduced for a
proper purpose.’ Proper purposes include impeaching the
witness or showing that the state has nothing to hide in its plea
agreements.” Id. at ¶ 42; Clement, supra, at ¶ 9.

{¶67} The appellate court concluded that Clement did not establish

the prerequisites for giving a limiting instruction. The court further found

that a review of the transcripts showed that the guilty plea was introduced

for proper purposes and that the prosecutor did not emphasize the guilty plea

or the codefendant’s conviction. Clement's argument was not well taken.

{¶68} As set forth above, we review for plain error. Appellant did not

request a limiting instruction. At the close of trial, the court instructed the

jury as follows:

“You have heard the testimony from Scott Lewis another
person who pled guilty to this robbery in which the same crime
is charged as in this case and is said to be an accomplish. (Sic.)
An accomplis is one who purposely, knowingly, assists or joins
another in the commission of a crime. Whether Scott Lewis
was an accomplis and the weight to give his testimony are
matters for you to determine. Testimony of a person who you
find to be an accomplis should be viewed with grave
suspension (Sic.) and weighed with great caution.”

{¶69} While this is a standard Ohio jury instruction, and it does point

out the proper purpose for consideration of the evidence is for credibility

purposes, this does not follow the model jury instruction highlighted by the

Eighth Appellate District in Kartsone, which specified that the jury was not
Lawrence App. No. 15CA2 38

to consider a codefendant’s guilty plea as evidence of Appellant’s guilt. As

in Kartsone, we look to the remaining factors to determine any error.

{¶70} The next question is whether or not there was a proper purpose

in introducing the evidence. The instances at trial wherein the State

informed the jury regarding the codefendants’ pleas began with the State’s

opening remarks:

“* * * It’s at that time Jason sees…wow. This man carries a
substantial amount of money. Maybe I’ll take it. You see
Jason and Scott Lewis who is a codefendant in this case who
has already pled guilty to the offense of robbery are best
friends. They’ve been best friends since they were young and
children.”

{¶71} At the end of opening, the prosecutor also stated:

“You’ll hear evidence from Scott Lewis who’s pled guilty in
the case, who is Jason Adams’ best friend and he’s going to tell
you how this robbery was planned and how it took place.
* * * There will be no doubt that Jason Adams is guilty of
aiding and abetting Scott Lewis and Ed Hampton.”

{¶72} Defense chose to defer opening statement. The next time a

codefendant’s plea is referenced occurred when Scott Lewis testified:

“Q: You have been indicted in this case with an indictment from
Lawrence County grand jury, for robbery is that correct?

A: Yes sir.

Q: You are represented by an attorney?

A: Yes sir.
Lawrence App. No. 15CA2 39

Q: And your attorney I believe is in the courtroom, Mr. Wolfson.

A: Yes Sir.

Q: You have pled guilty to robbery is that correct?

A: Yes sir.

Q. And that’s in connection with the January 14, 2014 robbery of
Sam Jones?

A. Yes sir.

***

Q: You’ve admitted your involvement in that, correct?

A: Yes sir.

***

Q: Um, in exchange for your testimony the State is going to
recommend a sentence for you, when the Judge sentences you at that
later sentencing date and that is a sentence of five years in prison* * *.

A: Yes sir.

Q: That’s your understanding?

A: Yes.

Q. The deal that you and your attorney reached with the State of
Ohio in your plea negotiations?

A: Yes sir.

Q. Do you know Jason Adams?

Q. Yes sir.
Lawrence App. No. 15CA2 40

Q. Tell the jury how you know Jason.

A. We grew up together * * *. Just been life-long friends.”

{¶73} The next reference to the codefendants’ pleas occurred during

the State’s closing:

“One of the things that the Judge is going to tell you is that you
have to find he aided and abetted Scott Lewis, and Ed
Hampton, in committing this aggravated robbery. As the proof
in this case was both Ed Hampton and Scott Lewis, had been
convicted of the robbery, um, and each pled guilty to the
offense.”

{¶74} Finally, on rebuttal, the State argued:

“The Judge will give you the legal instructions in a minute. He
talks about Scott Lewis’ testimony. Let’s compare Scott
Lewis’ testimony with Jason Adams’ testimony. Who’s more
believable. In your test of credibility who do you believe. He
says well Scott Lewis he’s got no reason to lie. What is it?
What is it? He’s pled guilty to this offense. Going to spend the
next five years in prison? He has to testify against his best
friend since they were kids. What’s his reason to lie? Why
would he lie, why would he do that?”

{¶75} It would appear that the purpose for introducing the fact of the

codefendants’ guilty pleas, especially that of Scott Lewis, was because the

State reasonably anticipated that defense counsel would attack Lewis’s

credibility, which was done. During cross-examination, defense counsel

elicited repetitive testimony about Lewis’s plea bargain with the State of

Ohio and his guilty plea to aggravated burglary. He also attempted to

damage Lewis’s credibility with the jury by inquiring about Lewis’s past,
Lawrence App. No. 15CA2 41

including a failed business, financial trouble, alleged drug dealing, a

discharge from employment, and accusing Lewis of fabricating a confession.

In closing, defense counsel argued:

“The testimony of a codefendant, Scott Lewis, you will receive
in instructions is to be viewed with gray suspicion. Remember
that when you go back and you weigh what he had to say. And
think about his motives for what he said. * * * And again he is
a convicted criminal. * * * Think back to Scott Lewis’
testimony and think about how he was all over the place when
he testified. It wasn’t consistent and that’s one of the things
you look at and see if you are being told the truth. The truth
doesn’t change.”

{¶76} Defense counsel further argued:

“You have one man and that one man would be Scott Lewis,
and he’s the only evidence that could implicate Jason Adams in
this. And again, he is a convicted criminal.”

{¶77} Based upon our review of the transcript, we find it appears the

State had a proper purpose in introducing the fact of Lewis’s guilty plea and

the details of his plea agreement. Furthermore, we find the plea was not

improperly emphasized. The State introduced the plea information in

opening and in Lewis’s direct examination. Although it was mentioned

again in closing and rebuttal, it was mentioned enough by opposing counsel

as well that there would have been little shock value when the State again

mentioned it in closing and rebuttal. Furthermore, the transcript does not
Lawrence App. No. 15CA2 42

reveal any argument by the State that the evidence of Lewis’s plea was

argued to be additional evidence of Appellant’s guilt.

{¶78} We, however, note there is no evidence in the transcript to

suggest that defense counsel invited this introduction of evidence. Defense

counsel deferred opening statement, so the State made a strategic decision to

introduce the evidence for fear the defense would highlight the information

as it indeed did. We conclude there was no error, let alone plain error, in

allowing the information of the codefendants’ pleas to be transmitted to the

jury.

{¶79} Had there been error, we would not find it to have affected the

outcome of the case as there was additional overwhelming evidence of

Appellant’s guilt. The jury was presented evidence that there were

numerous phone calls which occurred between Appellant and Scott Lewis

on the days before, during, and after the robbery. On the date of the robbery

alone, there were 40 calls between the friends. The evidence of the

frequency of calls was provided to the jury. Scott Lewis drove from West

Virginia to meet with Appellant at Giovanni’s in Ironton on the date of the

incident. After their lunch meeting, an additional 24 calls took place

between the two friends up until the time of the incident. And, there were

numerous calls between the two after the robbery until the next day. While
Lawrence App. No. 15CA2 43

the subject of the conversations is not known, but for the testimony of Scott

Lewis, the fact of the frequent phone calls is circumstantial evidence of

planning and preparation for the crime.

{¶80} The jury was provided surveillance tape of the friends leaving

their meeting at Giovanni’s, as well as surveillance tape of Appellant at the

Dollar General store in Ironton. Appellant, Lewis, and Hampton went into

Dollar General and purchased toy guns. Appellant is clearly seen doing the

purchasing, which he explained as being for Hampton’s children. Lewis

testified the toy guns were purchased in order to use to frighten Jones.

{¶81} Appellant also admitted he met with Ed Hampton at Burger

King in Ashland, Kentucky the day after the robbery. While he explained

that Lewis invited him there and did not show up, Lewis testified the

meeting was planned. This was another conflict in the evidence, again

involving Appellant’s credibility, which the jury had to resolve.

{¶82} Appellant also gave statements to the officers who testified. In

his first statement, he failed to mention that he had made and received

multiple phone calls to Scott Lewis, who was then known to be a primary

suspect in the robbery. Appellant failed to mention he had been to Dollar

General with Lewis and another person. He failed to mention he even knew

Scott Lewis or Ed Hampton.
Lawrence App. No. 15CA2 44

{¶83} Convincing evidence is the fact that Appellant was the only link

between Scott Lewis and Sam Jones. Both Lewis and Jones testified they

did not know each other. Lewis testified he had never met Jones but

Appellant described him and pointed him out, along with the vehicle Jones

drove. Appellant testified that Lewis had gone with him to meet Jones on

two occasions.

{¶84} And, Jones testified Appellant kept changing the meeting place

on the date of the incident. Appellant indicated to Jones he was in a hurry

that evening, yet afterwards he asked Jones to get a drink. The jury did not

find Appellant to be a credible witness or to have provided credible

explanations for conflicts in the evidence.

{¶85} For the foregoing reasons, we find plain error did not occur due

to the fact the jury was informed regarding the codefendants’ guilty pleas.

As such, we overrule the assignment of error and affirm the judgment of the

trial court.

“IV. THE TRIAL COURT ERRED IN FAILING TO
PROPERLY ADVISE APPELLANT OF POST-RELEASE
CONTROL RENDERING APPELLANT’S CONVICTION
PARTIALLY VOID.”

A. Standard of Review

{¶86} We have previously set forth the standard of review for felony

sentences above.
Lawrence App. No. 15CA2 45

B. Legal Analysis

{¶87} When a court determines that a prison term is necessary at

sentencing, R.C. 2929.19(B)(3)(c) requires it to notify the offender of a

mandatory term of post-release control for certain felony convictions,

including felonies of the second degree. Taylor, supra, at ¶ 41. To comply

with this requirement, the Supreme Court of Ohio held that trial courts must

actually notify offenders of post-release control sanctions both at the

sentencing hearing and in the sentencing entry. Id. See State v. Jordan, 104

Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at paragraph one of the

syllabus (superseded by statute on separate grounds as stated in State v.

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.) When a

court fails to properly impose post-release control for a particular offense,

the offending portion of the sentence is void, must be set aside, and is

subject to review and correction. State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, at ¶ 27-29; State v. Triplett, 4th Dist. Lawrence

No. 10CA35, 2011-Ohio-4628, ¶ 4. Appellant points out the transcript of

the sentencing hearing demonstrates Appellant was not advised of post-

release control in any way at his sentencing and only in the final judgment

entry, which was insufficient. Our review of the record confirms this. The

transcript from the sentencing hearing shows that the trial court did not
Lawrence App. No. 15CA2 46

inform Appellant that he would be subject to post-release control, nor did it

inform him of the sanctions for violation of post-release control. As a result,

that portion of the sentence is vacated and the matter is remanded for a

resentencing hearing in accordance with R.C. 2929.191. We sustain

Appellant’s fourth assignment of error.

“V. THE TRIAL COURT ERRED BY NOT GIVING
APPELLANT ALL REQUIRED JAIL TIME CREDIT.”5

“VI. APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL TO A DEGREE THAT
APPELLANT DID NOT RECEIVE A FAIR TRIAL.”

A. Standard of Review

{¶88} The Sixth Amendment to the United States Constitution and

Article I, Section 10 of the Ohio Constitution provide that defendants in all

criminal proceedings shall have the assistance of counsel for their defense.

The United States Supreme Court has generally interpreted this provision to

mean a criminal defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052;

McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, (1970); State v.

Creech, 188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶ 39 (4th

Dist.); State v. Pickett, supra, at ¶ 36.

5
At oral argument, the parties agreed that this assignment of error had been resolved. As such, we do not
address the issue of jail time credit in this opinion.
Lawrence App. No. 15CA2 47

{¶89} To establish constitutionally ineffective assistance of counsel, a

defendant must show (1) that his counsel's performance was deficient and

(2) that the deficient performance prejudiced the defense and deprived the

defendant of a fair trial. Pickett, supra, at ¶ 37; Strickland, 466 U.S. at 687;

State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85.

“In order to show deficient performance, the defendant must prove that

counsel's performance fell below an objective level of reasonable

representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel's errors, the result of the proceeding would

have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, 848 N.E.2d 810, ¶ 95 (citations omitted); State v. Wesson, 137 Ohio

St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81. “Failure to establish

either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.

06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a

court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721

N.E.2d 52, (2000) (stating that a defendant's failure to satisfy one of the

elements “negates a court's need to consider the other”).

{¶90} When considering whether trial counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable
Lawrence App. No. 15CA2 48

professional assistance.” Pickett, supra, at ¶ 38, quoting Strickland, 466 U.S.

at 689. Thus, “the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial

strategy.” Id. “A properly licensed attorney is presumed to execute his

duties in an ethical and competent manner.” State v. Taylor, 4th Dist.

Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears

the burden to show ineffectiveness by demonstrating that counsel's errors

were so serious that he or she failed to function as the counsel guaranteed by

the Sixth Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524

N.E.2d 476 (1988).

{¶91} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that but for counsel's errors, the result of the

trial would have been different. Pickett, supra, ¶ 39; State v. Short, 129 Ohio

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. White, 82 Ohio

St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts

may not simply assume the existence of prejudice, but must require the

defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike
Lawrence App. No. 15CA2 49

No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No.

01CA2592 (Apr. 2, 2002). As we have repeatedly recognized, speculation is

insufficient to demonstrate the prejudice component of an ineffective

assistance of counsel claim. State v. Jenkins, 4th Dist. Ross No. 13CA3413,

2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 13CA4,

2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-

Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-

Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-

2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that is purely

speculative cannot serve as the basis for an ineffectiveness claim).

B. Legal Analysis

{¶92} Appellant argues his counsel was ineffective for failing to

object to the numerous occasions throughout the trial when the jury was

informed of the guilty pleas of both Scott Lewis and Ed Hampton.

Appellant contends that the guilt of Lewis and Hampton was critical in

establishing that Appellant, who maintained he was also a victim of the

robbery, was actually involved in perpetrating the offense. As a result of the

error, Appellant argues he was deeply prejudiced. In response, the State

counters that the decision not to object to the mention of codefendant’s

guilty pleas was reasonable trial strategy and cannot be held to fall below an
Lawrence App. No. 15CA2 50

objective standard of reasonableness. The State further points out that

Appellant fails to demonstrate prejudice, i.e., that the outcome of the trial

would have been different had his counsel objected.

{¶93} First, we observe that “ ‘[t]he failure to object to error, alone, is

not enough to sustain a claim of ineffective assistance of counsel.’ ” Pickett,

supra, at ¶ 41, quoting State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d

136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d

831 (1988). A defendant must also show that he was materially prejudiced

by the failure to object. State v. Holloway, 38 Ohio St.3d at 244. State v.

Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 233.

Additionally, tactical decisions, such as whether and when to object,

ordinarily do not give rise to a claim for ineffective assistance. Pickett,

supra, ¶ 42 at State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858

N.E.2d 1144, ¶ 139-140. As the court explained in Johnson at ¶ 139-140:

“[F]ailure to object to error, alone, is not enough to sustain a
claim of ineffective assistance of counsel. To prevail on such a
claim, a defendant must first show that there was a substantial
violation of any of defense counsel's essential duties to his
client and, second, that he was materially prejudiced by
counsel's ineffectiveness. State v. Holloway (1988), 38 Ohio
St.3d 239, 244, 527 N.E.2d 831.

***

[E]xperienced trial counsel learn that objections to each
potentially objectionable event could actually act to their party's
Lawrence App. No. 15CA2 51

detriment. * * * In light of this, any single failure to object
usually cannot be said to have been error unless the evidence
sought is so prejudicial * * * that failure to object essentially
defaults the case to the state. Otherwise, defense counsel must
so consistently fail to use objections, despite numerous and
clear reasons for doing so, that counsel's failure cannot
reasonably have been said to have been part of a trial strategy or
tactical choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d
754, 774. Accord State v. Campbell, 69 Ohio St.3d 38, 52-53,
1994-Ohio-492, 630 N.E.2d 339.”

{¶94} In Pickett, the defendant was convicted of aggravated burglary

and complicity to felonious assault. On appeal, Pickett argued his trial

counsel performed ineffectively by failing to object to inadmissible hearsay.

We held that trial counsel's decision not to object fell within the broad realm

of trial strategy and did not constitute deficient performance. Moreover,

even if trial counsel performed deficiently by failing to object to alleged

hearsay testimony, appellant could not demonstrate that the failure to object

affected the outcome of the trial. We observed that even if the statements

had been excluded, the evidence still amply established that appellant

committed aggravated burglary and that he knowingly aided or abetted the

commission of the felonious assault. We pointed out Pickett’s speculation

that some of the hearsay statements bolstered the State’s theory of the case

was not sufficient to demonstrate ineffective assistance of counsel, and that

had trial counsel objected to the statements and had the court excluded them,
Lawrence App. No. 15CA2 52

we could not find a reasonable probability that the outcome of the

proceedings would have been different.

{¶95} Appellant argues trial counsel failed to object “on numerous

occasions throughout the trial” when the jury was informed of the guilty

pleas of his codefendants Lewis and Hampton. Pursuant to App.R. 16(A) it

is Appellant’s duty to cite to specific portions of the transcript where alleged

error occurred. Since he has not done so, we will assume Appellant is

referring to the instances where the codefendants’ pleas were mentioned, as

pointed out in assignment of three above, which was: (1) twice in opening;

(2) in direct; (3) in closing; and (4) in rebuttal.

{¶96} We find no plain error occurred by the admission of the

information that Appellant’s codefendants had entered guilty pleas in

conjunction with the robbery of Sam Jones and no error has occurred by

defense counsel’s failure to object to the admission of this evidence.

Counsel’s failure to object fell within the broad realm of reasonable trial

strategy. Furthermore, as set forth at length above, overwhelming

circumstantial evidence of Appellant’s guilt is in the record. We cannot find

a reasonable probability that the proceedings would have been different. For

the foregoing reasons, we find Appellant’s counsel did not render ineffective

assistance. As such we overrule the final assignment of error and affirm the
Lawrence App. No. 15CA2 53

judgment of the trial court. Accordingly, we affirm the trial court in all

regards except as it pertains to the fourth assignment of error, and remand

for resentencing consistent with this opinion.

JUDGMENT AFFIRMED IN
PART, REVERSED IN PART,
AND CAUSE REMANDED
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION.
Lawrence App. No. 15CA2 54

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and
Appellee shall split the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: __________________________
Matthew W. McFarland
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.