State v. Cooper

[Cite as State v. Cooper, 2020-Ohio-4293.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 108923
v. :

JAVON COOPER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 3, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634474-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jillian J. Piteo, Assistant Prosecuting
Attorney, for appellee.

Jonathan N. Garver, for appellant.

PATRICIA ANN BLACKMON, J.:

Defendant-appellant Javon Cooper appeals from his convictions for

attempted murder and felonious assault. He assigns the following errors for our

review:
 I. The trial court committed prejudicial error and violated
[Cooper’s] constitutional rights by allowing the prosecuting
attorney, over objection, to introduce evidence of [Cooper’s]
post-arrest silence.

II. The trial court committed structural error and plain error and
denied [Cooper] a fair trial and due process of law by using
leading questions to elicit prejudicial testimony from the victim.

III. The trial court committed prejudicial error by allowing the
prosecuting attorney, over objection, to elicit irrelevant and
inflammatory prejudicial evidence.

IV. [Cooper’s] convictions and sentences are against the manifest
weight of the evidence.

V. The trial court committed plain error, invaded the province of
the jury, and denied [Cooper] due process of law by instructing
the jury that a gun is, “of course” a “device or thing designed or
especially adapted for use as a weapon,” when that was an issue
to be decided by the jury.

VI. [Cooper’s] sentence should be reversed because it was based, at
least in part, upon unsubstantiated rumors of post-verdict
intimidation of the victim by named and unnamed persons
allegedly associated with [Cooper].

Having reviewed the record and the caselaw, we affirm the decision

of the trial court.

Cooper was indicted in connection with the 2018 shooting of Antonio

Palmer (“Palmer”). Cooper was charged with attempted murder and two counts of

felonious assault, all with one-year and three-year firearm specifications. The

matter proceeded to a jury trial in June 2019.

Palmer testified that on August 30, 2018, his thirtieth birthday, he

was riding a bicycle on the playground at Willow Elementary School in Cleveland.

While talking on the phone with his brother, Palmer noticed Cooper’s car, a black
BMW vehicle with Arizona license plates. According to Palmer, Cooper got out of

his vehicle and fired three or four shots at him, striking him in the arm and leg.

Palmer required multiple surgeries and spent four weeks in the hospital.

Initially, Palmer told police that he did not know the identity of his

assailant. He was presented with a photo array containing Cooper’s photograph but

did not identify him as the assailant. Palmer stated that he “was just going to let it

be,” and did not want to be a snitch. Several months later, Palmer told police that

“Coop” shot him, and picked defendant out of a photo lineup. He explained that he

now believed that Cooper could do it to “somebody else,” if he was not apprehended.

Palmer testified that during the shooting, he had a clear look at his assailant’s face

and recognized him as his girlfriend’s cousin. Palmer also recognized Cooper’s

vehicle.

Palmer did not provide the police with a possible reason for the

attack. However, at trial he stated that his girlfriend’s mother has mental health

issues, and that she had argued with him shortly before the shooting. During this

argument, she stated that he “hoped to see” his thirtieth birthday.

On cross-examination, Palmer was questioned about information in

the initial police report that indicated the assailant was driving a black BMW with

Georgia license plates. Palmer also acknowledged that he and Cooper had never

previously spoken to one another, and that in 2015 he was also shot while at Willow

Elementary School. Palmer opined that the earlier shooting was related to an
incident involving his brother, but he did not see the 2015 assailant. Palmer denied

gang involvement.

After obtaining questions from the jurors, the court also questioned

Palmer. During this questioning, the court asked whether, in contrast to Palmer’s

testimony that he is concerned that Cooper may shoot someone else, Palmer is

concerned that Cooper may shoot him again. Palmer replied that he is concerned

about this, but he “would be good” if Cooper is “put away.”

Douglas Mayne (“Mayne”) testified that he lived near Willow

Elementary playground. While getting his mail on the day of the shooting, he

observed kids on the playground. A midsized black car approached that area.

Mayne observed “muzzle flash” from inside the car and heard gunshots. Mayne

watched the black car fleeing the area, and he identified Cooper as the driver and

the assailant.

Neighbor Cody Pawelecki (“Pawelecki”) testified that he heard

gunshots and saw Palmer on the ground. He drove over to the playground and

transported Palmer to MetroHealth Hospital. According to Palmer’s physician, Dr.

Levon Khojayan, Palmer arrived at the hospital with life-threatening injuries.

Palmer underwent immediate surgery to save his life, but he remained in peril of

losing his leg. Palmer had additional wounds in his arm.

Cleveland Police Officer Michael Castiglione (“Officer Castiglione”)

testified that he responded to the scene but learned that the shooting victim had

been transported away. He located shell casings, and blood evidence.
 Cleveland Police Detective James Crivel (“Det. Crivel”) testified that

officers received information regarding a black BMW with out-of-state license

plates. Recalling that he had previously run the plates of a vehicle with this

description, Det. Crivel retrieved the prior LEADS report. The earlier information

identified Cooper as the owner of the vehicle. Det. Crivel, accompanied by Cleveland

Police Detective Andrew Hayduk (“Det. Hayduk”), subsequently conducted a brief

search of Cooper’s residence. They did not locate a weapon.

Det. Hayduk also spoke with Palmer at the hospital. Palmer reported

that the assailant was a light complected African-American with a beard. According

to Det. Hayduk, Palmer stated that the assailant was driving a black BMW with out-

of-state plates, possibly from Georgia. Officers administered a photo array to

Palmer that contained Cooper’s photo, but Palmer failed to identify anyone.

Det. Hayduk also spoke with Mayne. In this meeting, Mayne

identified Cooper from a photo array. Det. Hayduk subsequently obtained a search

warrant for Cooper’s car. Among the items located inside the car was a holster for a

handgun.

Cleveland Police Detective Michael Cozart (“Det. Cozart”) testified

that on November 29, 2018, he presented Palmer with a “six-pack” photo array and

Palmer immediately identified Cooper as his assailant. Det. Cozart did not know,

however, that Palmer failed to identify Cooper during the earlier photo array and

did not know whether Palmer discussed the shooting with others prior to identifying

Cooper.
 Cooper was convicted of all charges and specifications. The trial court

determined that the offenses were all allied offenses of similar import and merged

them for purposes of sentencing. The state elected to proceed to sentencing on

attempted murder, and the court sentenced Cooper to an eight-year term, and a

three-year term for the firearm specification.

Postarrest Silence

In the first assigned error, Cooper argues that the trial court erred in

permitting introduction of evidence that police met with him, but he did not give a

statement.

The Fifth Amendment to the United States Constitution, which is

applicable to the states through the Fourteenth Amendment, provides that no

person “shall be compelled in any criminal case to be a witness against himself.” See

also State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 11. “The

Fifth Amendment guarantees a criminal defendant’s right against self-

incrimination, which includes the right to silence during police interrogation.”

Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “Once

a person invokes his or her Fifth Amendment right to remain silent, the State cannot

use the person’s silence [either in prearrest or postarrest circumstances] as

substantive evidence of guilt in its case-in-chief.” State v. Bennett, 9th Dist. Lorain

No. 12CA010286, 2014-Ohio-160, ¶ 63, citing Wainwright v. Greenfield, 474 U.S.

284, 298-299, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). See also Doyle v. Ohio, 426

U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (“the use for impeachment
purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda

warnings, violated the Due Process Clause of the Fourteenth Amendment.”).

Further, as this court recently noted in State v. Rosa, 8th Dist.

Cuyahoga No. 108051, 2019-Ohio-4888:

[A] Doyle violation can also occur when the state uses other
witness testimony about a defendant’s silence as implicit
evidence or inference of a defendant’s guilt. See, e.g., State v.
Froe, 4th Dist. Scioto No. 02CA2860, 2003-Ohio-7334
(prosecutor can implicitly imply the defendant’s silence is
evidence of guilt through police testimony about the defendant
invoking his right to remain silent or to consult an attorney);
State v. Jones, 1st Dist. Hamilton No. C-970043, 1998 Ohio App.
LEXIS 3938 (Aug. 28, 1998). “[T]he test under Doyle is to
determine whether the prosecutor’s comment was extensive —
‘whether an inference of guilt from silence is stressed to the jury
* * *’ as a basis of conviction.” State v. Lanier, 6th Dist. Ottawa
No. OT-95-051, 1996 Ohio App. LEXIS 3286, 11 (Aug. 2, 1996),
quoting United States v. Newman, 943 F.2d 1155, 1158 (9th
Cir.1991). * * *

In State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807
N.E.2d 335, the Ohio Supreme Court held that use of a
defendant’s pre-arrest silence as substantive evidence of guilt
violates the Fifth Amendment, and that the use of a defendant’s
post-arrest, post-Miranda invocation of his right to counsel as
substantive evidence of guilt violates the Fourteenth
Amendment. The court specifically noted, however, that “[the
investigating officer’s] testimony that he had made an
appointment to meet with [the defendant] to discuss the case but
that the appointment was not kept is [a] legitimate
[governmental practice]” because the testimony qualified as
evidence of the “course of investigation.” Id. at ¶ 32, citing
Combs v. Coyle, 205 F.3d 269 (6th Cir.2000).

Id. at ¶ 37, 39.
The Rosa court concluded that a detective’s “single comment about

Rosa’s silence was not extensive that an inference of guilt was stressed to the jury
and used as a basis for conviction. Rather, * * * this comment was more akin to a

response about the detective’s course of investigation.” Id. at ¶ 38.

Here, the challenged testimony is as follows:

Q. Did you attempt to make contact with the defendant in this case?

A. Yes. I sent notifications to the Fugitives Unit to attempt to try to locate
him, and I believe in November they were able to, and while he was at the
county jail, I did attempt to interview him at the jail.

Q. Okay. And were you able to or did you interview him?

[Defense counsel]: Objection.

THE COURT: Well, this is probably objectionable, but I’m not sure why you
started this in the first place if it is. So let me hear the answer to this question:
Did you interview him?

THE WITNESS: Yes.

THE COURT: Next question.

Q. And was any statement given?

A. No.

Analyzing this remark and the entire record in this matter, we

recognize that the comment at issue was more than the issue contemplated in Leach.

That is, the challenged testimony constitutes more than merely outlining that the

detective made an appointment with Cooper that was not kept. However, in Leach,

the impermissible evidence further indicated that the defendant said that he was not

keeping the interview appointment because he wanted to speak with an attorney.

Id. at ¶ 5. The state used this evidence as substantive evidence of guilt. Id. at ¶ 29-

30. In this matter, however, no further information as to the reason for the lack of
a statement was elicited. Therefore, we find this matter analogous to Rosa in that it

was a detective’s “single comment” about Cooper’s silence, rather than evidence

offered as substantive evidence of Cooper’s guilt. Moreover, the remark was not so

extensive that an inference of guilt was stressed to the jury or used as a basis for

conviction. Rather, we find that this comment can properly be read as a remark

about the detective’s course of investigation, and not evidence offered as substantive

evidence of guilt.

Accordingly, we conclude that this assigned error is without merit.

Court’s Leading Questions

In the second assigned error, Cooper argues that the trial court erred

and became “an advocate” when it questioned Palmer using leading questions that

elicited that he is fearful of further harm from Cooper but “would be good” if Cooper

is “put away.”

We review the court’s questioning for an abuse of discretion. State v.

Skerkavich, 8th Dist. Cuyahoga No. 105455, 2019-Ohio-4973, ¶ 14.

As to the substantive law, the Skerkavich court explained:

With regard to the trial court’s questioning of witnesses, a trial
court, in either a bench trial or a jury trial and in accordance with
Evid.R. 614(B), “may interrogate witnesses, in an impartial
manner, whether called by itself or by a party.” Evid.R. 614(B).
“This rule exists because the trial court has an ‘obligation to
control proceedings, to clarify ambiguities, and to take steps to
insure substantial justice.’” State v. Stadmire, 8th Dist.
Cuyahoga No. 81188, 2003-Ohio-873, ¶ 26, quoting State v. Kay,
12 Ohio App.2d 38, 49, 230 N.E.2d 652 (8th Dist.1967).
Furthermore, and pursuant to Evid.R. 611(A), the trial court has
discretion to control the flow of the trial. “This control includes
 asking questions of the participants and the witnesses in a search
for truth.’” State v. Redon, 8th Dist. Cuyahoga No. 92611, 2009-
Ohio-5966, ¶ 8, quoting State v. Prokos, 91 Ohio App.3d 39, 44,
631 N.E.2d 684 (4th Dist.1993), citing Evid.R. 614.

A trial court’s powers pursuant to Evid.R. 611 and 614 are within
its discretion. * * *

“‘A judge abuses his [or her] discretion when he [or she] plays
the part of an advocate, but the rule is not so restrictive that [a]
judge is not permitted to participate in a search for the truth.’”
Redon at ¶ 11, quoting State v. Kight, 4th Dist. Jackson No. 682,
1992 Ohio App. LEXIS 4727 (Sept. 9, 1992). In this way, a trial
court “may interrogate witnesses, in an impartial manner,
whether called by itself or by a party.” Evid.R. 614(B). Absent
“‘any showing of bias, prejudice, or prodding of a witness to elicit
partisan testimony, it will be presumed that the trial court acted
with impartiality [in propounding to the witness questions from
the bench] in attempting to ascertain a material fact or to
develop the truth.’” State v. Baston, 85 Ohio St.3d 418, 426,
1999-Ohio 280, 709 N.E.2d 128 (1999), quoting Jenkins v.
Clark, 7 Ohio App.3d 93, 98, 7 Ohio B. 124, 454 N.E.2d 541 (2d
Dist.1992).

However, “there are strict limits placed on the propriety of
judicial questions of witnesses, lest the court by its inquiries give
the appearance of favoring one side or the other.” Harper v.
Roberts, 173 Ohio App. 3d 560, 2007-Ohio-5726, 879 N.E.2d
264, ¶ 7 (8th Dist.). With regard to a bench trial, “the court is
‘accorded greater flexibility in questioning witnesses * * *
[because] when there is no jury, there is no one to be
prejudicially influenced by the judge’s demeanor.’” Sheflyand v.
Schepis, 8th Dist. Cuyahoga Nos. 95665 and 95667, 2011-Ohio-
2040, ¶ 35, quoting Mentor v. Brancatelli, 11th Dist. Lake No.
97-L-011, 1997 Ohio App. LEXIS 5439, 10 (Dec. 5, 1997).

Id. at ¶ 13-16.

In Skerkavich, this court determined that the trial court exceeded its

permissible questioning where its questions greatly exceeded the questions asked by

the prosecuting attorney and defense counsel, and the court’s questions
demonstrated bias and prejudice. Id. at ¶ 25. This court ruled that the trial court

did not merely attempt to ascertain a material fact or attempt to develop the truth,

but instead abandoned its duty as an impartial factfinder. Based upon the extent

and tone of the questions, this court concluded that “[t]he trial court was in no way

attempting to clear up inconsistencies, contradictions, or ambiguities. Instead, the

trial court took the stance of a biased advocate on the side of the prosecution.” Id. at

¶ 23.

Here, Cooper takes issue with these questions:

THE COURT: Are you also concerned he’ll do it to you again?

THE WITNESS: No. I said he’ll do it to me so he’ll do it to someone
else.

THE COURT: I understood your answer, but are you also concerned
that he might shoot you?

THE WITNESS: Oh, yes.

THE COURT: What about having that concern now that you’re
testifying?

(Tr. 241)

Considering the questioning, we do not find that the trial court

abused its discretion. Unlike the questioning condemned in Skerkavich, the court’s

questions were prompted by juror questions and were very brief. Examining the

volume, content, and tone, we find no demonstration of bias or prejudice. Rather,

we conclude that the questions were posed to ascertain Palmer’s reasons for naming

Cooper as his assailant despite his initial failure to identify him. The court’s
questions were a clear attempt to develop the truth, and to ascertain the material

facts.

This assigned error is without merit.

Prejudicial Evidence

In the third assignment error, Cooper argues that the trial court erred

and violated Evid.R. 402 and 403 in admitting evidence of Palmer’s fear of Cooper

after the shooting.

The admission of evidence “lies within the broad discretion of the trial

court, and a reviewing court should not disturb evidentiary decisions in the absence

of an abuse of discretion that has created material prejudice.” State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62. This court’s review is

limited to determining whether the trial court’s evidentiary rulings were

unreasonable, arbitrary, or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23,

2002-Ohio-68, 759 N.E.2d 1240.

“All relevant evidence is admissible, except as otherwise provided by

[federal and state law.]” Evid.R. 402. Evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

Evid.R. 401. But it is “not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.” Evid.R. 403(A). Relevant evidence “may be excluded if its
probative value is substantially outweighed by considerations of undue delay, or

needless presentation of cumulative evidence.” Evid.R. 403(B).

In this case, Cooper complains that the trial court erred in admitting

testimony that Palmer is afraid of Cooper due to the shooting. However, we find no

abuse of discretion. Palmer initially testified that he refused to cooperate with the

police in prosecuting the assailant and decided to leave it “in the street.” When

Palmer later changed his mind, he stated that he was afraid Cooper would shoot

someone else, and the court inquired as to whether Palmer was concerned for his

own safety. This question was probative of Palmer’s truthfulness in identifying

Cooper as the assailant, and it tested Palmer’s consistency in believing that Cooper

is dangerous. Moreover, the question simply raises the commonsense concern as to

whether the victim of a claimed assailant is fearful. There is nothing out of the

ordinary about the question or the answer.

This assigned error lacks merit.

Manifest Weight of the Evidence

In the fourth assigned error, Cooper argues that his convictions are

against the manifest weight of the evidence because of Palmer’s failure to identify

him from a photo array, his subsequent claim that the assailant was Cooper,

someone he knew, and whose car he had seen before. Cooper also notes that during

trial, Palmer theorized that the shooting related to an issue with his girlfriend’s

mother, and, he argues, this claim was not sufficiently investigated. Likewise,

Cooper complains that the investigation failed to discount the possibility that the
shooting was caused by gang members who had previous interactions with Palmer’s

brother.

“[W]eight of the evidence involves the inclination of the greater

amount of credible evidence.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). Weight of the evidence concerns “the evidence’s effect of

inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25, citing Thompkins at 386-387. The reviewing court must consider all the

evidence in the record, the reasonable inferences, and the credibility of the witnesses

to determine “‘whether in resolving conflicts in the evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

Furthermore, “the weight to be given the evidence and the credibility

of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. When examining

witness credibility, “the choice between credible witnesses and their conflicting

testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio

St.3d 120, 123, 489 N.E.2d 277 (1986). The fact-finder “is free to believe all, some,

or none of the testimony of each witness appearing before it.” State v. Ellis, 8th Dist.

Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.
 Upon review, we cannot say that the jury lost its way and created a

manifest miscarriage of justice by convicting Cooper of the offenses. We recognize

that Palmer initially told the police that he did not know his assailant; he stated that

the shooter was driving a black BMW with out-of-state license plates. He did not

identify Cooper from a photo array. However, months later, Palmer clearly

identified Cooper and stated that he knew him, and that Cooper is his girlfriend’s

cousin. Although Mayne’s testimony differed from Palmer’s as to whether the

shooter was inside or out of the car during the shooting, Mayne also stated that a

dark car was involved, and he identified Cooper as the assailant. The jury was free

to resolve the inconsistencies, and the basic evidence presented linked Cooper and

his car to the shooting. The convictions for attempted murder and felonious assault

with firearm specifications are not against the manifest weight of the evidence.

Instruction as to firearm

In the fifth assigned error, Cooper argues that the trial court erred in

instructing the jury that a “deadly weapon * * * candidly includes a gun, of course.”

He complains that this remark was tantamount to an instruction to the jury that it

must find that a deadly weapon was used during the offenses.

Here, the indictment charged Cooper with felonious assault in

violation of R.C. 2903.11(A)(2), setting forth that Cooper “did knowingly cause or

attempt to cause physical harm to John Doe by means of deadly weapon or

dangerous ordnance, to wit: handgun.” The jury instructions defined a “deadly

weapon” as:
 A deadly weapon is any instrument, device, or thing that has two
characteristics. The first is that it is capable of inflicting or
causing death. The second is in the alternative; either the
instrument, device or thing was designed or especially adapted
for use as a weapon and that candidly includes a gun, of course,
or the thing was possessed, carried or used in this case as a
weapon. These, of course, are questions of fact for you to decide.

I will tell you that I take no position on what the facts are or aren’t
here, but you have heard evidence that Palmer was shot with a
gun. These instructions are meant to cover all possibilities. So
some cases the person might be hit with a bat and there’s a
question of is that a deadly weapon. If some of this verbiage
seems excessive, that’s the reason for that.

(Tr. 497.)

As an initial matter, we note that it is not appropriate to use the term

“of course” when instructing a jury as to what they alone must find. In determining

whether prejudicial error occurred herein, we recognize that R.C. 2923.11(A) defines

“deadly weapon” as “any instrument, device, or thing capable of inflicting death, and

designed or specially adapted for use as a weapon, or possessed, carried, or used as

a weapon.” See also Committee Comment to R.C. 2923.11(A) which specifically

includes, as examples of a “deadly weapon” “such as a gun, knife, billy, or brass

knuckles[.]” Further, this court has determined that a gun is “capable of inflicting

death,” as set forth in R.C. 2923.11(A). State v. Strowder, 8th Dist. Cuyahoga No.

53840, 1988 Ohio App. LEXIS 1852 (May 12, 1988). Unloaded guns have also met

this definition. State v. Tate, 54 Ohio St.2d 444, 446, 377 N.E.2d 778 (1978).

Moreover, there is no indication that the instant attack involved a nonlethal

instrument such as a toy or other device that is not cable of inflicting death. State v.

Hammond, 8th Dist. Cuyahoga No. 99074, 2013-Ohio-2466, ¶ 21. We also note that
the court’s remark was not added in connection with the court’s instructions on

firearms specifications, which also require evidence establishing operability etc. See

R.C. 2941.145. Therefore, although we caution against the use of the phrase “of

course” in a jury charge, we find no prejudicial error in this matter.

Sentence

In the sixth assigned error, Cooper argues that the trial court erred in

sentencing him and was influenced by Palmer’s day-of-sentencing disclosure that

he has been receiving threats since the verdict.

As an initial matter, we note that the sentence is within the range set

forth for attempted murder, that is punishable by prison terms of three, four, five,

six, seven, eight, nine, ten, or eleven years. R.C. 2923.02(E); 2929.14(A)(1).

Additionally, the trial court stated, and the journal entries indicate, that the court

considered the purposes and principles of felony sentencing set forth in R.C. 2929.11

and the sentencing factors listed in R.C. 2929.12. Therefore, the sentence is

presumptively valid. State v. Colon, 8th Dist. Cuyahoga No. 105571, 2018-Ohio-

280, ¶ 7; State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

Furthermore, prior to imposing sentence, the trial court explicitly

informed Cooper that it was not going to take into account the reported alleged

threats in fashioning the sentence. The trial court stated: “I’ve taken into account

everything that the two lawyers and you have said here today, while discounting Mr.

Palmer’s representation of post-trial conduct to [the prosecuting attorney] as she

described here this morning.” (Tr. 570-571.)
 Therefore, we cannot accept Cooper’s claim that the trial court erred

in imposing sentence herein.

The sixth assigned error is without merit.

Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR