State v. Brunson

[Cite as State v. Brunson, 2020-Ohio-5078.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 107683
v. :

NIGEL J. BRUNSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 29, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-616120-C

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Cleary, Brian Kraft, Ryan Bokoch,
and Katherine E. Mullin, Assistant Prosecuting Attorneys,
for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellant.

RAYMOND C. HEADEN, J.:

Defendant-appellant Nigel J. Brunson (“Brunson”) appeals from his

convictions and sentence for aggravated murder, aggravated robbery, kidnapping,
aggravated burglary, felonious assault, and murder. For the reasons that follow, we

affirm.

Procedural and Substantive History

On April 25, 2017, the Cuyahoga County Grand Jury indicted Brunson

on one count of aggravated murder in violation of R.C. 2903.01(A), three counts of

aggravated murder in violation of R.C. 2903.01(B), six counts of aggravated robbery

in violation of R.C. 2911.01(A)(1), one count of aggravated robbery in violation of

R.C. 2911.01(A)(3), one count of kidnapping in violation of R.C. 2905.01(A)(3), six

counts of kidnapping in violation of R.C. 2905.01(A)(2), one count of aggravated

burglary in violation of R.C. 2911.11(A)(1), one count of aggravated burglary in

violation of R.C. 2911.11(A)(2), one count of felonious assault in violation of

R.C. 2903.11(A)(1), five counts of felonious assault in violation of

R.C. 2903.11(A)(2), one count of murder in violation of R.C. 2903.02(B), and one

count of having weapons while under disability in violation of R.C. 2923.13(A)(2).

With the exception of the having weapons while under disability count, all counts

carried one- and three-year firearm specifications.

Brunson was charged together with Dana Thomas (“Thomas”),

Dwayne Sims (“Sims”), Anita Hollins (“Hollins”), and Garry Lake (“Lake”) in

connection with the October 24, 2016 killing of Cooley Lounge bartender Melissa

Brinker (“Brinker”) and the related robbery of patrons at the bar. Lake ultimately

entered into a plea agreement with the state of Ohio and testified as a witness for the

state at trial.
 On June 8, 2018, Brunson filed a motion for severance of his trial

from that of his codefendants pursuant to Crim.R. 14. On June 12, 2018, the court

denied this motion, and Brunson, Sims, and Hollins proceeded to a joint jury trial.

Thomas waived his right to a jury trial and proceeded to a simultaneous bench trial.

Shortly before trial began, and following Lake’s testimony at a hearing

on a motion to suppress filed by Sims, Hollins moved to introduce recorded

statements made by Lake in a conversation with his attorney and investigator.

These statements were made during a break in Lake’s meeting with police, and

unbeknownst to Lake and his attorney, the statements were recorded.

Counsel for Hollins and Brunson argued that the recorded statements

should be made available for use during their cross-examination of Lake at trial.

They argued that the statements were exculpatory and were admissible under the

crime-fraud exception to the attorney-client privilege. In response, the state argued

that the statements were privileged and, further, the content of the recorded

statements did not show evidence of a crime or fraud. The court independently

reviewed the recording, as well as suppression-hearing testimony of Lake, his trial

counsel, and Cleveland Police Detective Kathleen Carlin (“Detective Carlin”), and

ruled that the statements were privileged and could not be used during Lake’s cross-

examination at trial.

Midway through trial, Sims entered into a plea agreement wherein he

pleaded guilty to two counts of aggravated robbery and one three-year firearm

specification. The trial court subsequently sentenced Sims to 14 years in prison.
 The following summary of the facts underlying this case was set forth

in this court’s recent decision in Hollins’s appeal, State v. Hollins, 8th Dist.

Cuyahoga No. 107642, 2020-Ohio-4290:

The evidence presented by the state indicated that in December 2015,
Hollins and her then-boyfriend, Marcus Williams (“Williams”) were
involved in an argument at the Cooley Lounge. As the fight escalated,
Hollins was struck in the head with a beer bottle and required medical
attention. Hollins accused bartender Jane Svec (“Svec”) of setting up
the incident, and Hollins was banned from the bar after that incident.
The individuals who struck Hollins were charged with felonies. Svec
testified at their trial, and the assailants were subsequently acquitted.

By the fall of 2016, Hollins was dating Brunson. Brunson, Sims, and
Thomas were friends, and Lake and Thomas were raised together.
Approximately one week before the murder, Holly Smith (“Smith”), a
friend of Hollins, received a Facebook post asking who was working at
Cooley Lounge. Smith did not know who posted the question but
believed it might have been Hollins. Additionally, Svec changed her
work schedule shortly before this posting.

On the night of October 24, 2016, Lake needed a ride home from a
party. Hollins picked him up. Brunson, Thomas, Sims, and Hollins’s
two children were in the car. Lake testified that he fell asleep during
the car ride. When he awoke, Hollins had parked the car at a
playground in the area of West 132nd Street in Cleveland, in the vicinity
of the Cooley Lounge. Brunson, Thomas, and Sims were no longer in
the car.

Meanwhile, Patrick Lorden (“Lorden”), Melissa Morton (“Morton”),
James Fox (“Fox”), and Thomas Bernard (“Bernard”) were patrons at
the bar, and Brinker was bartending. Patron Thomas Platt, a.k.a.
“Andy,” was assisting Brinker by emptying the garbage and performing
other tasks in exchange for free drinks. The evidence presented at trial
indicated that two other individuals entered the bar, sat together, and
ordered a drink. The two requested a cup to share it, and both men
drank from the cup. A third man entered the bar. He later threw the
cup away, the cup that the other two men drank from, placing it in a
receptacle that Andy had recently emptied. The third man joined the
first two men at the bar. All three men suddenly produced weapons.
The men began robbing and assaulting the patrons. Morton attempted
 to call the police, but one of the assailants pistol-whipped her. During
the attack, Brinker was forced to the rear of the bar and shot by one of
the men who requested a drink. The other man who requested a drink
also went to this area and shot her.

After the gunmen fled, the patrons discovered Brinker dead in the back
of the bar. The police subsequently retrieved video surveillance
evidence and also retrieved the cup that the men drank from before the
attack. DNA analysis of the cup established two profiles. Analysis
showed that Thomas is 4.44 million times more likely than a
coincidental match to an unrelated African-American, and Brunson is
130 million times more likely than a coincidental match to an unrelated
African-American person. Police also linked Sims to the attack.

According to Lake, when the three men returned to Hollins’s car,
Thomas said that he had to shoot the bartender in the face because she
saw him. Brunson laughed about having to “finish her off,” and Hollins
said, “that’s what she get,” before driving them away from the scene.
Police recovered .380- and .45-caliber casings from this area. Lorden’s
partially burned wallet and Brinker’s partially burned purse were
recovered from East 80th Street in Cleveland, near the homes of
Brunson, Sims, and Lake.

Cell phone records indicated that Hollins and Brunson were together
at approximately 11:15 p.m., prior to the murder. Thomas’s phone was
also in this same area. Brunson’s phone made three *67 calls to the
Cooley Lounge, ostensibly to conceal the identity of the caller from the
recipient of the call. By 11:38 p.m., cell phone location data shows
Thomas, Brunson, and Sims near the Cooley Lounge.

After the attack, Thomas confronted Hollins and said that she told him
that there were no cameras at the bar. At that point, Hollins said that
she was going to sue them civilly in connection with the December 2015
incident when she was attacked.

At the close of the state’s case, the state moved to dismiss three counts of felonious

assault, and the court granted that motion. Brunson made a Crim.R. 29 motion for

acquittal. The court denied this motion.
 On July 3, 2018, the jury returned a verdict of guilty on all counts

except for one count of aggravated murder and one count of aggravated robbery.

The court referred Brunson to the probation department for a presentence-

investigation report (“PSI”). On August 23, 2018, the court sentenced Brunson to

life in prison without the possibility of parole.

Brunson appeals, presenting the following assignments of error

verbatim for our review:

I. The trial court violated Mr. Brunson’s right to a public trial when it
conducted a hearing, deciding to partially close the courtroom without
testimony, factual findings, or an opportunity for Mr. Brunson to be
heard, because he was not present.

II. The trial court violated Mr. Brunson’s right to be present, when it
conducted a hearing, deciding to partially close the courtroom, outside
of his presence.

III. The trial court erred in denying Mr. Brunson his right to a fair trial,
as well as his right to confrontation, when it ruled that his alleged co-
conspirator’s attorney-client privilege trumped both of these rights and
would not permit his trial counsel to confront Garry Lake with Brady
material provided by the state in discovery.

IV. The trial court abused its discretion when it permitted a state’s
investigating officer to testify to an opinion of guilt, thus usurping the
jury’s factfinding duty.

V. The trial court abused its discretion when it permitted the admission
of hearsay statements erroneously on the basis of the exception of
statements made in furtherance of a conspiracy, thus both admitting
hearsay in violation of the rules of evidence and depriving Mr. Brunson
of his constitutional rights under the Confrontation Clause.

VI. The trial court erred in failing to sever this trial of several co-
defendants into separate trials, violating Crim.R. 8 and Crim.R. 14, as
well as Mr. Brunson’s Sixth Amendment right of cross-examination,
 and resulting in a loss of due process because Mr. Brunson did not
receive a fair trial.

VII. The trial court abused its discretion when it permitted the
admission of testimony that the phone and phone records of Rico Suave
related to Appellant.

VIII. Trial counsel for Mr. Brunson provided ineffective assistance of
counsel, as guaranteed by both the United States Constitution, and the
Ohio Constitution, when he told the jury in closing argument that one
of Mr. Brunson’s co-defendants, who had earlier been on trial with the
same jury, pled guilty in the midst of trial.

IX. Trial counsel for Mr. Brunson provided chronically ineffective
assistance of counsel, as guaranteed by both the United States
Constitution, throughout every phase of Mr. Brunson’s trial, thus
failing to be a meaningful adversary to the state’s case.

X. The cumulative effect of multiple errors at trial, even if singularly not
sufficient to warrant reversal, together deprived Appellant of a fair trial
and denial of due process.

XI. The trial court engaged in sentencing error when it used Mr.
Brunson’s right to remain silent against him in making its sentencing
decision of life without the possibility of parole for crimes committed
at the age of 19. This sentence is contrary to law and constitutes cruel
and unusual punishment in violation of the Eighth Amendment to the
United States Constitution.

XII. Mr. Brunson received ineffective assistance of counsel at
sentencing when his trial counsel failed to enunciate any mitigation for
the trial court to consider whatsoever.

Law and Analysis

I. Right to Public Trial

In his first assignment of error, Brunson argues that the trial court

violated his right to a public trial when it conducted a hearing, and decided to

partially close the courtroom without hearing testimony, making factual findings, or
providing Brunson an opportunity to be heard because he was not present at the

hearing.

The partial closure Brunson refers to occurred when, midway through

trial, the judge noticed that Brunson appeared agitated and seemed to be having a

disagreement with his lawyer. Upon noticing this, the court engaged in a dialogue

with the attorneys outside of the presence of the jury. During this dialogue, one of

Brunson’s attorneys was meeting with him outside of the courtroom, and his other

attorney was in the courtroom.

The judge stated on the record that Brunson’s counsel indicated to the

court that Brunson was upset because he believed that one of the courtroom

deputies had posted a photograph of him on social media, and because the deputy

had escorted one of his family members, Hendri Hopkins (“Hopkins”), from the

courtroom. The judge then asked the deputy to explain why he had removed

Hopkins from the courtroom. The deputy stated that he observed Brunson

attempting to get the attention of people in the back of the courtroom and making

hand signals at them. The deputy then observed that one of the individuals in the

back of the courtroom, Hopkins, had taken out his cellphone and appeared to be

texting. Seeing this, the deputy instructed Hopkins to exit the courtroom and told

him that he could reenter the courtroom after the next break in the proceedings.

The deputy also stated that Brunson had accused him of posting a photograph of

him on social media. The deputy believed that Brunson was referring to a photo that
appeared on Cleveland.com, and informed him that he (the deputy) also appeared

in the photograph and therefore had not taken it.

During this sidebar, the court expressed concern that Hopkins was

attempting to communicate with Brunson. In light of this concern, the court stated

at one point, “I’m not inclined to let him back in the courtroom” and at another point

“he’s not permitted back in the courtroom.”

The court then instructed the bailiff to bring Brunson into the

courtroom to discuss his concerns regarding the photograph on social media. The

court asked Brunson if he was willing to waive his attorney-client privilege with

respect to the conversation he had with his attorney concerning his complaint about

the photograph. Brunson responded affirmatively. Brunson’s attorney indicated

that Brunson was concerned with both a photograph on Cleveland.com and photos

he believed were taken by deputies and then posted to social media. The court

informed Brunson that it could not control what photos a media outlet chose to

publish online, and that there was no basis for his concern about deputies taking

photographs in the courtroom. At the conclusion of this conversation, a prosecutor

asked the court if people could come back into the courtroom, and it responded that

they could.

In his first assignment of error, Brunson argues that the removal of

Hopkins from the courtroom violated his right to a public trial. The right to a public

trial is a fundamental constitutional guarantee under the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. State
v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 49, citing

State v. Lane, 60 Ohio St.2d 112, 119, 397 N.E.2d 1338 (1979). A violation of this

right is considered structural and is not subject to harmless-error analysis. Id.,

citing Waller v. Georgia, 467 U.S. 39, 49, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), fn. 9.

A structural error is a “‘defect affecting the framework within which the trial

proceeds, rather than an error in the trial process itself.’” Drummond at ¶ 50,

quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302

(1991).

The right to a public trial is not absolute, however, and in some

instances must yield to other interests. Drummond at ¶ 51. A trial judge has

authority to exercise control over the proceedings and the discretion to impose

control over the proceedings, but any closure must be narrowly drawn and applied

sparingly. Id., citing State ex rel. Repository v. Unger, 28 Ohio St.3d 418, 421, 504

N.E.2d 37 (1986); Lane at 121; State v. Clifford, 135 Ohio App.3d 207, 213, 733

N.E.2d 621 (1st Dist.1999). A trial court may exclude courtroom spectators whose

conduct is likely to interfere with the administration of justice, and the “‘decision to

remove spectators from a courtroom is reviewed under an abuse of discretion

standard.’” State v. Sowell, 10th Dist. Franklin No. 06AP-443, 2008-Ohio-3285,

¶ 34, quoting State v. Bragg, 10th Dist. Franklin No. 05AP-100, 2006-Ohio-1903,

¶ 24.

The United States Supreme Court has laid out a four-part test that

courts must use to determine whether closure of a courtroom is necessary: (1) the
party seeking to close the hearing must advance an overriding interest that is likely

to be prejudiced; (2) the closure must be no broader than necessary to protect that

interest; (3) the trial court must consider reasonable alternatives to closing the

proceeding; and (4) it must make findings adequate to support the closure. Waller

at 48.

Ohio courts have consistently limited the applicability of the Waller

factors in cases of partial closure. In Drummond, the Ohio Supreme Court held that

“[w]hen a trial judge orders a partial, as opposed to a total, closure of a court

proceeding, ‘a “substantial reason” rather than Waller’s “overriding interest” will

justify the closure.’” Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d

1038, at ¶ 53, quoting Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir.1992), quoting

United States v. Sherlock, 962 F.2d 1349, 1356-1357 (9th Cir.1992). Further, this

court has previously held that in certain instances of a partial closure, the Waller

test is supplanted with the triviality standard. State v. Lawrence, 8th Dist.

Cuyahoga Nos. 100371 and 100387, 2014-Ohio-4797, ¶ 24, citing Sowell at ¶ 37.

Under this standard, “‘[e]ven a problematic courtroom closing can be ‘too trivial to

amount to a violation of the [Sixth] Amendment,’” and a reviewing court will look to

the actions of the trial court and analyze whether the effect that they had on the

conduct of the trial deprived the defendant of his Sixth Amendment protections.

Sowell at ¶ 43, quoting United States v. Perry, 479 F.3d 885, 890 (D.C.Cir.2007),

and citing Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.1996).
 The Tenth District’s opinion in Sowell is particularly instructive here,

because it involved “exclusion of an accused’s relative from a courtroom following

an assertion by a court officer that the relative had made threatening gestures

toward a witness while the witness testified.” Sowell, 10th Dist. Franklin No. 06AP-

443, 2008-Ohio-3285, at ¶ 45. Although the record in this case reflects that Hopkins

was gesturing towards Brunson, rather than the witness, Hopkins’s exclusion was

likewise based on his own misconduct. Unlike the closure involved in Waller, the

alleged closure here did not close the courtroom to the public at large. It was

narrowly limited to the one disruptive individual. Further, the purposes of a right

to a public trial contemplated by Waller, such as ensuring that the judge and

prosecutor perform their duties responsibly, discouraging perjury, or encouraging

witnesses to come forward, were in no way impacted here.

The “closure” complained of by Brunson is the removal of Hopkins

midway through the trial. A courtroom deputy, noticing that Hopkins was using his

phone and attempting to communicate with Brunson during the testimony of a

witness, escorted Hopkins from the courtroom. We note that although the court

ultimately stated that Hopkins would not be permitted to reenter the trial, a review

of the record does not indicate whether he attempted to reenter the courtroom as

instructed by the deputy. Further, the record contains no other indication that

Hopkins, or any other individual, was excluded from the trial at any other point of

the proceedings. Therefore, the removal of Hopkins from the courtroom was fully
within the court’s discretion and did not violate Brunson’s Sixth Amendment right

to a public trial. Brunson’s first assignment of error is overruled.

II. Right to Be Present

In his second assignment of error, Brunson argues that the court

violated his right to be present when it conducted the hearing he challenges in the

first assignment of error. Following Hopkins’s removal from the courtroom, the

court called a brief recess and had a discussion with the attorneys and the courtroom

deputies. As described above, Brunson was not present for this conversation until

he waived his attorney-client privilege with respect to his concerns about

photographs on social media.

Crim.R. 43(A) provides that except as explicitly provided in the rules,

“the defendant must be physically present at every stage of the criminal proceeding

and trial, including the impaneling of the jury, the return of the verdict, and the

imposition of sentence.” Here, Brunson’s trial counsel did not object to Brunson’s

absence from the courtroom, thereby waiving all but plain error on appeal. State v.

Bello, 8th Dist. Cuyahoga No. 108735, 2020-Ohio-1506, ¶ 25, citing State v.

Boynton, 8th Dist. Cuyahoga No. 106301, 2018-Ohio-4429. Crim.R. 52(B) provides

that “[p]lain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” Id.

Although the right to be present is fundamental, a defendant’s

absence does not necessarily result in prejudicial or constitutional error and only

implicates due process to the extent that a fair and just hearing would be thwarted
by their absence. State v. Glasser, 4th Dist. Athens No. 11CA11, 2012-Ohio-3265,

¶ 49, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 90.

Brunson’s brief absence during a discussion about his own agitation

does not amount to plain error. Brunson was absent from the courtroom for a short

time, and despite the arguments advanced in his first assignment of error, the

conversation that took place in his absence did not directly implicate his right to a

public trial. Because his absence did not “thwart” a fair and just hearing, we decline

to recognize plain error here. Therefore, Brunson’s second assignment of error is

overruled.

III. Garry Lake’s Attorney-Client Privilege

In his third assignment of error, Brunson argues that the trial court

erred in ruling that he could not cross-examine alleged coconspirator and state’s

witness Lake regarding his statements made to his trial attorney and his investigator

that were recorded, unbeknownst to his attorney, during a break in his interview

with police. Brunson maintains that the trial court denied him his due process rights

under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Further, Brunson argues that he was likewise denied his Sixth Amendment right to

confront a witness against him.

A trial court is vested with broad to determine the admissibility of

evidence, so long as that discretion is exercised in accordance with the rules of

procedure and evidence. State v. Thomas, 8th Dist. Cuyahoga No. 101202, 2015-

Ohio-415, ¶ 28, citing Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056
(1991). Therefore, we will not disturb the trial court’s decision to admit or exclude

evidence absent an abuse of discretion. Id. An abuse of discretion implies that the

court’s decision was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

The Ohio Supreme Court has held that R.C. 2317.02 “evinced the sole

criteria for waiving [attorney-client] privilege: (1) the client expressly consents, or

(2) the client voluntarily testifies on the same subject.” State v. McDermott, 72 Ohio

St.3d 570, 572, 651 N.E.2d 985 (1995). Further, it is the contents of the

communication that are privileged, not the mere fact that a communication took

place. Clapp v. Mueller Elec. Co., 162 Ohio App.3d 810, 2005-Ohio-4410, 835

N.E.2d 757, ¶ 55 (8th Dist.), citing Upjohn Co. v. United States, 449 U.S. 383, 101

S.Ct. 677, 66 L.Ed.2d 584 (1981).

Brunson argues that because Lake voluntarily testified on the same

subject during the suppression hearing, he effectively waived attorney-client

privilege. Specifically, Brunson refers to the following exchange:

PROSECUTOR: And before you had this — this interview on April 6th
that we have here on the screenshot, State’s 1, did you let your attorney
know what you were going to tell law enforcement on that day?

LAKE: I let him know what I was going to tell them?

PROSECUTOR: Correct.

LAKE: No.

PROSECUTOR: All right. Did you ever indicate that you knew the
names or identification or individuals that committed this crime on
October 24, 2016?
 LAKE: You said did I tell them who the names was?

PROSECUTOR: Correct.

LAKE: Yes.

Lake’s attorney, who was present during this testimony, did not

object. At a subsequent hearing on the issue of whether Lake’s recorded statements

were protected by attorney-client privilege, Lake’s attorney testified that he would

have objected had the line of questioning touched on any particulars of the

discussion that was being inadvertently recorded. Lake’s attorney also testified that

he understood that attorney-client privilege was intact at the time of his

conversation with Lake.

Our review of the record compels us to conclude that Lake’s testimony

at the suppression hearing was not a waiver of his attorney-client privilege. The

general context of Lake’s testimony was the circumstances of his photo

identification of suspects. As described above, Lake stated that he did not tell his

attorney what he was going to tell law enforcement. Lake then stated that he told

“them” the names, but this statement lacks clarity in terms of who “them” was. The

trial court reviewed both this testimony and the video of the recorded statement in

question and determined that the facts were insufficient to show that Lake had

waived his attorney-client privilege. We agree. Nothing in the record indicates that

Lake waived his attorney-client privilege, either prior to making the statement in

question or during his testimony at the suppression hearing. Although Lake did
testify as to his conversation with his attorney, the record does not clearly establish

that he testified as to the contents of that communication. Therefore, the trial court

did not abuse its discretion in ruling that Brunson could not cross-examine Lake as

to his privileged statements. Brunson’s third assignment of error is overruled.1

IV. Detective Carlin’s Testimony

In Brunson’s fourth assignment of error, he argues that the trial court

abused its discretion by permitting an investigating officer to testify to an opinion of

guilt and usurp the jury’s fact-finding duty. Specifically, Brunson challenges an

exchange from the state’s direct examination of Detective Carlin. After portions of

the surveillance footage of the incident were played, Detective Carlin testified that

she had obtained height and weight information for each of the defendants upon

their arrests. She then testified that, using those physical characteristics to review

the surveillance footage of the suspects, she was able to form an opinion that suspect

one was Brunson. This testimony was admitted over repeated objections by defense

counsel.

Brunson argues that this testimony violates Evid.R. 701 and

constitutes both improper vouching of the state’s case and opinion testimony of

guilt, which robs the jury of its fact-finding function. Further, Brunson relies on

State v. Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050. In Dzelajlija,

1 We note that Hollins raised this issue in her direct appeal, arguing specifically
that Lake’s statement was subject to the crime-fraud exception, and we similarly found
“nothing in the record from which we can conclude that [Lake’s attorney-client privilege]
was waived or otherwise vitiated.” Hollins, 8th Dist. Cuyahoga No. 107642, 2020-Ohio-
4290, at ¶ 57.
this court found that the prosecutor elicited improper opinion testimony from a

police lieutenant where the lieutenant testified that he believed the state’s main

witness was being truthful. Id. at ¶ 33. In response, the state argues that Detective

Carlin’s testimony was not improper because she was not offering an opinion as to

Brunson’s guilt. Instead, according to the state, she testified that based on her

investigation, including review of the surveillance footage, she was able to identify

Brunson as a suspect.

Evid.R. 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.

In general, opinion testimony of a police officer about the guilt of a defendant is

inadmissible. State v. Ruble, 2017-Ohio-7259, 96 N.E.3d 792, ¶ 58 (4th Dist.), citing

State v. Battiste, 8th Dist. Cuyahoga No. 102299, 2015-Ohio-3586, ¶ 35-36.

We agree with Brunson that Detective Carlin’s identification of

“suspect one” in the surveillance footage of the incident as Brunson was improper

opinion testimony. Without discounting Detective Carlin’s years of experience in

homicide investigations, her testimony was based on Brunson’s physical

characteristics, the forensic evidence, and the surveillance footage, all of which was

available to the jury. Similarly, this is not a case in which opinion testimony may be

admitted to identify an individual in a grainy photo or a surveillance video of poor

quality, or where the witness has a much greater familiarity with the defendant that
gave them a greater appreciation of the defendant’s normal appearance. State v.

Bond, 10th Dist. Franklin No. 11AP-403, 2011-Ohio-6828. Further, while it is not

erroneous for a law enforcement officer to testify that they identified the defendant

as a suspect, there is a fine but critical distinction between that and what occurred

here. Because there was no dispute that particular individuals in the surveillance

footage were the perpetrators in this case, Detective Carlin’s testimony that she had

determined that one of the individuals — “suspect number one” — was Brunson.

Although this testimony was improper, we conclude that its

admission constitutes harmless error. Crim.R. 52(A) provides that “[a]ny error,

defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.” State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44,

¶ 61. “‘The harmless error doctrine recognizes the principle that the central purpose

of a criminal trial is to decide the factual question of the defendant’s guilt or

innocence.’” State v. Keith, 8th Dist. Cuyahoga No. 69267, 1997 Ohio App. LEXIS

914, 25 (Mar. 13, 1997), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106

S.Ct. 1431, 89 L.Ed.2d 674 (1986). Courts use a three-part analysis in determining

whether the erroneous admission of certain evidence constitutes harmless error

under Civ.R. 52(A):

First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. Second,
it must be determined whether the error was not harmless beyond a
reasonable doubt. Lastly, once the prejudicial evidence is excised, the
remaining evidence is weighed to determine whether it establishes the
defendant’s guilt beyond a reasonable doubt.
(Internal citations omitted.) Boaston at ¶ 63.

Here, while we are mindful the complained of testimony, in isolation,

was prejudicial, upon a thorough review of the record we cannot conclude that the

error was not harmless beyond a reasonable doubt. Further, the record reflects that

the state presented overwhelming evidence of Brunson’s guilt. Beyond the

surveillance footage of the incident, the state introduced DNA evidence indicating

that the plastic cup shared by two of the suspects contained DNA from Brunson and

Thomas. The state also introduced cell phone records showing not only that a

number belonging to Brunson had called the bar shortly before the shooting and

asked who was working at the time, but also that Brunson’s cellphone was in the

area of the bar at the time of the shooting. In addition, Lake testified at trial that

Brunson and the other codefendants had “robbed a bar” on the west side of

Cleveland, and that Brunson said that he “finished” the victim. Both the DNA

evidence and the surveillance footage are particularly compelling here because they

are persuasive evidence of Brunson’s identity. Therefore, we find that any error in

admitting Detective Carlin’s testimony was harmless. Brunson’s fourth assignment

of error is overruled.

V. Hearsay Statements

In Brunson’s fifth assignment of error, he argues that the trial court

abused its discretion when it permitted the admission of hearsay statements

pursuant to the coconspirator exception in Evid.R. 801(D)(2)(e). Specifically, he

challenges (1) testimony from Detective Carlin regarding jail calls; (2) a text message
identified as coming from Brunson’s phone regarding removing a .45 caliber gun

from a truck; (3) a statement allegedly made by Brunson on a jail call asking why

“Wayne” was not in jail; (4) testimony regarding a letter Thomas allegedly wrote;

and (5) testimony regarding Hollins’s correspondence to Marcus Williams

(“Williams”).

Evid.R. 801(D)(2)(e) provides that “a statement by a co-conspirator

of a party during the course and in furtherance of the conspiracy upon independent

proof of the conspiracy,” if offered against a party, is not hearsay. Further, the

proponent of the evidence must establish “(1) the existence of a conspiracy; (2) the

defendant’s participation in the conspiracy; (3) the declarant’s participation in the

conspiracy; (4) that the statement was made during the course of the conspiracy;

and (5) that the statement was in furtherance of the conspiracy.” State v. Braun,

8th Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 108, citing State v. Milo, 6 Ohio

App.3d 19, 22, 451 N.E.2d 1253 (10th Dist.1982).

Brunson argues that the aforementioned evidence was improperly

admitted because it did not satisfy the requirements of admissibility. While he fails

to provide any additional argument in support of this assertion, he appears to be

arguing that the aforementioned evidence was improperly admitted because none

of the challenged statements were made in furtherance of a conspiracy. After

reviewing the record, we disagree.

A conspiracy does not necessarily end with the commission of a crime,

and a statement made by a coconspirator may be admissible under
Evid.R. 801(D)(2)(e) “‘if it was made while the conspirators were still concerned

with the concealment of their criminal conduct or their identity.’” State v. Siller, 8th

Dist. Cuyahoga No. 80219, 2003-Ohio-1948, ¶ 28, quoting State v. Shelton, 51 Ohio

St.2d 68, 364 N.E.2d 1152 (1977), syllabus. All of the challenged evidence concerns

written or oral statements made by coconspirators in this case regarding either the

underlying incidents or the subsequent investigation and trial.

Because it appears that the challenged statements were made in

furtherance of a conspiracy and otherwise satisfied the requirements of

Evid.R. 801(D)(2)(e), the trial court did not abuse its discretion in admitting this

evidence. Brunson’s fifth assignment of error is overruled.

VI. Severance

In Brunson’s sixth assignment of error, he argues that the trial court

erred in failing to sever the trial of multiple codefendants into separate trials, thus

violating Crim.R. 8, 14, and Brunson’s right to confront and cross-examine

witnesses against him. Brunson argues that the admission of incriminating

statements from codefendants violated his constitutional rights pursuant to Bruton

v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Specifically, Brunson points to testimony from Smith regarding the

statement she made to police. Smith told the police that she heard about the robbery

at Cooley Lounge the night it happened from one of her regular customers at the bar

where she worked. Smith also told police that several weeks after the incident, she

was at a bar with Brunson, Lake, and Hollins. Brunson argues that had Smith gone
on to testify as to statements that Hollins may have made to her, this would have

created a Bruton issue for Brunson. Where no such testimony was elicited, however,

we cannot conclude that this somehow violated Brunson’s constitutional rights.

Brunson also argues that Lake’s testimony presented a Bruton issue.

Specifically, he argues that the mere threat by the state that it would be able to use

Thomas’s statement to the police during its direct examination of Lake infringed

Brunson’s ability to fully cross-examine Lake. The court made clear to the state that

it was not permitted to bring up Thomas’s statement to the police, and the state did

not bring up the statement. This argument asks us to find error in a hypothetical

line of questioning that theoretically could have occurred at trial. We decline to do

so. Further, beyond the argument addressed in our analysis of his third assignment

of error, Brunson does not argue that Lake’s actual testimony constituted a violation

of his constitutional rights.

Finally, Brunson argues that the trial court erred in not severing his

case pursuant to Crim.R. 8 and 14. Specifically, Brunson argues that joinder

prejudiced him here because Sims’s counsel discussed Smith’s fear in testifying in

the case during her cross-examination, his codefendants had conflicting arguments,

and Hollins’s counsel implicated him and the other codefendants during closing

arguments.

Crim.R. 8(B), referring to joinder of defendants, provides

Two or more defendants may be charged in the same indictment,
information or complaint if they are alleged to have participated in the
same act or transaction or in the same series of acts or transactions
 constituting an offense or offenses, or in the same course of criminal
conduct. Such defendants may be charged in one or more counts
together or separately, and all of the defendants need not be charged in
each count.

Crim.R. 14, referring to relief from prejudicial joinder, provides, in

relevant part:

If it appears that a defendant or the state is prejudiced by a joinder of
offenses or of defendants in an indictment, information, or complaint,
by such joinder for trial together of indictments, informations or
complaints, the court shall order an election or separate trial of counts,
grant a severance of defendants, or provide such other relief as justice
requires. In ruling on a motion by a defendant for severance, the court
shall order the prosecuting attorney to deliver to the court for
inspection pursuant to Rule 16(B)(1) any statements or confessions
made by the defendants which the state intends to introduce in
evidence at the trial.

Here, Brunson’s pretrial motion to sever was denied, and he did not

renew the motion. Generally, a trial court’s decision regarding severance will not be

disturbed absent an abuse of discretion. State v. Nitsche, 2016-Ohio-3170, 66

N.E.3d 135, ¶ 90 (8th Dist.), citing State v. Banks, 2015-Ohio-5413, 56 N.E.3d 289,

¶ 64 (8th Dist.), citing State v. Grimes, 8th Dist. Cuyahoga No. 94827, 2011-Ohio-

4406, ¶ 15. Where a defendant fails to renew their motion to sever either at the close

of the state’s case or the close of all evidence waives all but plain error on appeal.

Nitsche at ¶ 90, citing Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-

Ohio-2512, ¶ 32. We recognize plain error “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Nitsche at ¶ 90, quoting Lyndhurst at ¶ 32. To establish that joinder was so

prejudicial as to constitute plain error, a defendant must establish that the error in
joinder affected the outcome of the trial. State v. Gordon, 152 Ohio St.3d 528, 2018-

Ohio-259, 98 N.E.3d 251, ¶ 26.

It is well settled that the law favors joinder of defendants and the

avoidance of multiple trials because joinder conserves judicial and prosecutorial

time, lessens the expenses of multiple trials, diminishes the inconvenience to

witnesses, and minimizes the possibility of incongruous results from successive

trials before different juries. State v. Allen, 5th Dist. Delaware No. 2009-CA-13,

2010-Ohio-4644, ¶ 54, citing State v. Thomas, 61 Ohio St.2d 223, 225, 400 N.E.2d

401 (1980). Further, a “‘joinder cannot result in prejudice if the evidence of the

offenses joined at trial is simple and direct, so that a jury is capable of segregating

the proof required for each offense.’” State v. Harris, 8th Dist. Cuyahoga

No. 104833, 2017-Ohio-2985, ¶ 13, quoting State v. Lytle, 10th Dist. Franklin Nos.

15AP-748 and 15AP-754, 2016-Ohio-3532, ¶ 65. Here, although there were multiple

codefendants and numerous charges, the evidence against all of the codefendants

was simple and direct.

Further, we are not persuaded by Brunson’s argument that he was

prejudiced by conflicting arguments made by his codefendants. Brunson points to

statements made by Hollins’s counsel during closing arguments, in which he

suggested that Hollins should not bear legal responsibility for what happened in the

same way as “these guys,” presumably referring to Hollins’s codefendants. Brunson

also points out that his trial counsel argued during closing arguments that Lake was

likely more involved in the robbery and shooting than he had claimed, while
Hollins’s co-counsel argued during closing arguments that Lake was a liar, and said

“I don’t think he was in that car because I don’t think [Hollins] was in that car.”

In some cases, codefendants’ defenses may be irreconcilable to the

point that severance is required. State v. Dues, 2014-Ohio-5276, 24 N.E.3d 751, ¶ 31

(8th Dist.) Mutually antagonistic defenses are not prejudicial per se, however. Id.,

citing State v. Daniels, 92 Ohio App.3d 473, 478, 636 N.E.2d 336 (1st Dist.1993).

Here, the statements highlighted by Brunson appear to be two different methods of

impeaching the credibility of the state’s key witness. While the methods were not

identical, they were not mutually antagonistic so as to constitute prejudice, let alone

prejudice that amounts to plain error. Therefore, the joinder of defendants here was

not plain error. Brunson’s sixth assignment of error is overruled.

VII. Admission of Cell Phone Records

In his seventh assignment of error, Brunson argues that the trial court

abused its discretion by admitting testimony that certain phone records were related

to Brunson.

At trial, the state introduced cell phone records from a phone that it

attributed to Brunson, despite being registered to Javier Rico Suave. Brunson

argues that because no phone was taken directly from Brunson, he did not provide

police with a phone number, and the phone in question was used after Brunson was

arrested, the state did not establish that the phone could reasonably be attributed to

Brunson.
 Avon police arrested Brunson in November 2016, in connection with

an unrelated incident. At the time of his arrest, Brunson was in a hotel room with

Hollins. Cleveland Police Detective Aaron Reese (“Detective Reese”) testified at trial

as to his investigation in the instant case. Upon learning of Brunson’s arrest,

Detective Reese obtained body camera footage from the arresting officer. Detective

Reese testified although Brunson did not have a cell phone on his person when he

was arrested, he had asked his arresting officers to give his cellphone to Hollins

when he was being arrested. In the video of the arrest, a cellphone is visible on the

hotel bed. Detective Reese then obtained a search warrant for Hollins’s residence,

and he ultimately located what he believed to be Brunson’s phone, hidden in a towel

in Hollins’s bedroom. Detective Reese compared the phone recovered from

Hollins’s bedroom with the phone visible in the body-camera footage and

determined that they were the same phone. He obtained a search warrant for the

phone.

A search of the phone revealed that Hollins, Sims, and Lake were

listed as contacts. The phone was connected to Brunson’s Facebook page, and the

phone had sent text messages to Hollins regarding the incident in this case. In light

of the evidence introduced regarding ownership of the phone, we cannot conclude

that the trial court’s admission of cell phone evidence constituted an abuse of

discretion. Brunson’s seventh assignment of error is overruled.
VIII. Ineffective Assistance of Counsel

In Brunson’s eighth, ninth, and twelfth assignments of error, he

argues that he received ineffective assistance of counsel. In his eighth assignment

of error, he argues that he received ineffective assistance of counsel because his trial

counsel made a reference to Sims’s midtrial guilty plea during his closing arguments.

Specifically, Brunson’s counsel made the following statement:

We ask for you to again consider that there was Garry Lake, Dana,
Wayne — and Dwayne or Wayne is no longer here because of a plea.
And what was that about?

Immediately following this statement, the court and counsel

discussed the issue during a sidebar. Subsequently, the court instructed the jury as

follows:

Ladies and gentlemen of the jury, you are to wholly disregard the last
statement that was made by [Brunson’s counsel] with regard to a
codefendant.

Defense counsel then continued with his closing argument.

In his ninth assignment of error, Brunson argues that he received

ineffective assistance of counsel based on what he characterizes as “the utter lack of

any coherent defense whatsoever.” In his twelfth assignment of error, he argues that

his counsel was ineffective for failing to make any substantive statements in

mitigation at Brunson’s sentencing hearing. We will address these assignments of

error together.

To establish ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance at trial was seriously flawed and deficient
and fell below an objective standard of reasonableness and that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the trial would

have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. at 687-688.

In deciding a claim of ineffective assistance, reviewing courts indulge

a strong presumption that counsel’s conduct falls within the range of reasonable

professional assistance, and defendants must therefore overcome the presumption

that the challenged action might be considered sound trial strategy. State v.

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), citing Strickland.

Here, we cannot conclude that Brunson has satisfied both prongs of

the Strickland test. Trial strategy, and even strategy that includes debatable trial

tactics, does not establish ineffective assistance of counsel. State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. Further, viewing counsel’s

reference to Sims’s plea in the context of the entirety of his closing argument, it

appears possible that counsel intended to imply that Lake and Sims may have both

played a greater role in the incident than the state argued. Although it is indeed

questionable for defense counsel to bring up a codefendant’s guilty plea, our role is

not to question whether another strategy may have been more effective. The fact

that a strategic decision may appear misguided when viewed in hindsight does not

mean that the decision was deficient.
 Even if we were to find that counsel’s performance was deficient,

Brunson’s ineffective assistance claim would still fail because he has not shown

established that he was prejudiced. We note that “curative instructions have been

recognized as an effective means of remedying errors or irregularities that occur

during trial.” State v. Williams, 8th Dist. Cuyahoga No. 94242, 2010-Ohio-5484,

¶ 21, citing State v. Ghaster, 8th Dist. Cuyahoga No. 91576, 2009-Ohio-2134, citing

State v. Zuern, 32 Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). Further, a jury is

presumed to follow instructions, including curative instructions, given to it by a trial

judge. Id., citing State v. Henderson 39 Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988).

Here, the court issued the following jury instruction concerning Sims

following his plea agreement midway through trial:

Members of the jury, I am withdrawing from your consideration the
case against Dwayne Sims. That case has been disposed of and is no
longer before you for decision.

You are to deliberate in this case only concerning the complaints
pending against Nigel Brunson and Anita Hollins. You are not to
speculate about why the case against Dwayne Sims has been withdrawn
from your consideration, and it is not to influence your verdicts
concerning Nigel Brunson and/or Anita Hollins in any way.

Your responsibility is now to decide the charges that remain pending
against Nigel Brunson and Anita Hollins based solely on the evidence
against him and her.

After Brunson’s counsel alluded to the plea agreement in his closing argument, the

court issued a curative instruction as described above. We presume that both

instructions were effective. Brunson has not established that but for counsel’s

comment, there is a reasonable probability that the outcome of trial would have been
different. Even without that statement, the state presented significant and

compelling evidence in its case against Brunson.

Brunson also argues that his counsel provided chronically ineffective

assistance of counsel throughout every stage of the proceedings, thus failing to be a

meaningful adversary to the state’s case. In support of this assertion, Brunson

points to numerous instances throughout trial, counsel’s allegedly ineffective cross-

examination of the state’s DNA analyst, counsel’s failure to object to parts of the

state’s closing argument, and the failure to object to Sims’s counsel’s cross-

examination of Hollie Smith.

We reiterate an ineffective assistance of counsel claim is not a vehicle

to second-guess the strategic decisions of trial counsel. State v. Adams, 103 Ohio

St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 31. Indulging the strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance, we note that there may have been valid — though ultimately unsuccessful

— strategic reasons for the complained of conduct. With respect to cross-

examination of the state’s DNA analyst, in particular, we note that where the state

presented compelling DNA evidence that not only placed Brunson at the scene but

identified him as one of the perpetrators, trial counsel may have elected to do as little

as possible to emphasize that persuasive evidence. Therefore, we cannot conclude

that the claimed failure to object or to effectively cross-examine a witness does not

constitute deficient performance.
 Finally, Brunson argues that his counsel was constitutionally

deficient because they offered no statements in mitigation at Brunson’s sentencing

hearing. Brunson also argues that his counsel breached attorney-client privilege

when it told the court that it had instructed Brunson not to discuss the case with

anyone in the probation department.

“The extent to which counsel presents mitigation evidence at a

sentencing hearing is generally a matter of trial strategy.” State v. Tinsley, 8th Dist.

Cuyahoga No. 105551, 2018-Ohio-278, ¶ 17. Although Brunson argues that counsel

failed to offer anything substantive in mitigation, the record reflects that counsel

urged the court to consider the PSI, and emphasized that Brunson was suffering

from mental-health issues at the time of the offense. We cannot conclude that this

constitutes deficient performance. Further, while we acknowledge that Brunson’s

argument is limited to the record, he has not shown a reasonable probability that,

had counsel presented additional evidence in mitigation, he would have received a

different sentence.

Because Brunson has not established that his trial counsel’s

performance was deficient, or that he was prejudiced by that performance, we

overrule his eighth, ninth, and twelfth assignments of error.

IX. Cumulative Error

In Brunson’s tenth assignment of error, he argues that the cumulative

effect of multiple errors at trial, even if singularly not sufficient to warrant reversal,

together deprived him of a fair trial and denial of due process. Ohio recognizes the
cumulative error doctrine, and the Supreme Court of Ohio has held that a

“conviction will be reversed where the cumulative effect of errors in a trial deprives

a defendant of the constitutional right to a fair trial even though each of numerous

instances of trial court error does not individually constitute cause of reversal.”

State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). The cumulative error

doctrine is only applicable in cases where there are multiple errors. Berea v. Timm,

8th Dist. Cuyahoga No. 107740, 2019-Ohio-2573, ¶ 42, citing State v. Obermiller,

8th Dist. Cuyahoga No. 101456, 2019-Ohio-1234, ¶ 52, citing State v. Hunter, 131

Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 132. Here, the only error that

occurred was one instance of improper opinion testimony, addressed in our

discussion of Brunson’s fourth assignment of error. Therefore, there is no need to

consider the cumulative of effect of other claimed errors. Brunson’s tenth

assignment of error is overruled.

X. Brunson’s Right to Remain Silent

In Brunson’s eleventh assignment of error, he argues that the trial

court engaged in sentencing error when it used his right to remain silent against

him. Brunson argues that his sentence of life without the possibility of parole,

imposed for crimes he committed when he was 19 years old, is contrary to law and

constitutes cruel and unusual punishment in violation of the Eighth Amendment to

the United States Constitution. Brunson points to the following statement made by

the court at sentencing:

You killed her and you have no remorse. That’s what I don’t
understand. You have no remorse. You don’t acknowledge what you
 did. The PSI, you don’t want to talk to them and tell them about
anything you did.

Shortly thereafter, the following exchange took place between defense

counsel and the court:

DEFENSE COUNSEL: Judge, the only thing I would indicate and I
think the record should reflect that in the PSI where Mr. Brunson had
no comment as to the facts of this case, it’s because he was under
instructions from his lawyers not to discuss the case with the probation
officer, that any comments that he had about the case, he should wait
until he comes to the courtroom and make those comments in court.
Obviously he chose not to talk. But in terms of the PSI, the reason he
didn’t comment to the probation officer is because I had advised him
not to.

THE COURT: That’s understood and noted for the record. And so to
the extent that you advised him not to speak to the probation officer, I
will no longer include that as part of my sentencing basis therefor. But
the fact remains that — I’m assuming that you did not tell him not to
speak this morning, correct?

DEFENSE COUNSEL: That’s correct, your Honor.

THE COURT: To allocute. And he chose nonetheless not to speak this
morning, not to allocute, not to acknowledge anything that he had
done, not to express any kind of remorse to anyone in this courtroom,
particularly the family and friends of Missy Brinker, who he shot very
coldly and with consequence. And I should note then for the record as
well, Mr. Butler, since you brought it up after the fact and it was
included in the trial, it was testified to that Mr. Brunson was laughing
when he said, “I finished her.”

Brunson argues that this exchange shows that the court explicitly used Brunson’s

silence as a basis for sentencing. We disagree.

A defendant has a right to remain silent at sentencing even after a

guilty plea, and a court cannot use that silence at sentencing or at trial against him.

Mitchell v. United States, 526 U.S. 314, 321, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999).
Penalizing a defendant for exercising their constitutional rights is unconstitutional.

North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In affirming a defendant’s right to remain silent, the Supreme Court in Mitchell

noted that “[w]hether silence bears upon the determination of a lack of remorse, or

upon acceptance of responsibility [for sentencing purposes] is a separate question.”

Mitchell at 330. Likewise, Ohio courts have consistently held that a defendant’s

silence at sentencing may not be used against him in fashioning a sentence. State v.

Hodges, 8th Dist. Cuyahoga No. 101145, 2014-Ohio-4690, ¶ 11, citing States v. Betts,

8th Dist. Cuyahoga No. 88607, 2007-Ohio-5533, ¶ 29.

Lack of remorse, however, is a sentencing factor pursuant to

R.C. 2929.12(D)(5). “Thus, even where a defendant does not speak at sentencing,

the court’s statement that the defendant demonstrated a lack of remorse and an

unwillingness to take responsibility, does not demonstrate that a court’s sentencing

decision is based upon the silence but shows only that the court was considering the

statutory sentencing factors.” Hodges at ¶ 11, citing State v. Clunen, 7th Dist.

Columbiana No. 12 CO 30, 2013-Ohio-5525, ¶ 21; State v. Moore, 11th Dist. Geauga

No. 2011-G-3027, 2012-Ohio-3885, ¶ 47.

Here, the court properly considered Brunson’s lack of remorse

pursuant to the statutory sentencing factors. The record makes clear that the court

was only considering Brunson’s lack of allocution at sentencing to the extent that it

indicated a lack of genuine remorse pursuant to R.C. 2929.12(D)(5). Further, the

record reflects that the trial court considered multiple sentencing factors, including
the fact that Brunson’s criminal record created a high risk of recidivism, that the

offenses here were committed while Brunson was on postrelease control for other

offenses, and that in addition to causing death and physical harm, Brunson caused

significant terror and emotional harm to numerous people. Therefore, Brunson’s

argument that the court used Brunson’s silence against him at sentencing is not well

taken.

Brunson also argues that his sentence of life without the possibility of

parole was contrary to law and violated the Eighth Amendment’s prohibition against

cruel and unusual punishment. Pursuant to R.C. 2953.08(G)(2), a reviewing court

may increase, reduce, or otherwise modify a felony sentence if it clearly and

convincingly finds that either (a) the record does not support certain required

statutory findings or (b) the sentence is otherwise contrary to law. A sentence is

contrary to law if the court fails to consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in

R.C. 2929.12. As discussed above, a review of the record shows that the trial court

properly considered the relevant factors in R.C. 2929.12 and the purposes of felony

sentencing in R.C. 2929.11. While Brunson repeatedly emphasizes his youth for

support that a life sentence constitutes cruel and unusual punishment, Brunson has

not provided, nor have we found, support for this assertion in Ohio law. Brunson’s

eleventh assignment of error is overruled.

Judgment 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

convictions having been affirmed, any bail pending appeal 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.

RAYMOND C. HEADEN, JUDGE

PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR