State v. Laws

[Cite as State v. Laws, 2021-Ohio-166.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-20-10

v.

KIARRIS M. LAWS, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Trial Court No. CR2018 0527

Judgment Affirmed

Date of Decision: January 25, 2021

APPEARANCES:

Thomas J. Lucente, Jr. for Appellant

Jana E. Emerick for Appellee
Case No. 1-20-10

PRESTON, J.

{¶1} Defendant-appellant, Kiarris M. Laws (“Laws”), appeals the February

11, 2020 judgment of sentence of the Allen County Court of Common Pleas. For

the reasons that follow, we affirm.

{¶2} At some time between 7:30 and 8:00 p.m. on December 2, 2018,

Dequaisha Wilson (“Wilson”) received a phone call from Alonzo Williams, Jr.

(“Williams”). Williams called Wilson to tell her that he had clothes for A.W., their

son. Williams told Wilson that he was at an apartment complex located on the south

side of Lima, Ohio and that she could pick up the clothes there. After the phone

call, Wilson drove with A.W. to the apartment complex to meet with Williams.

Williams told Wilson that he would be waiting for her inside of a white truck.

{¶3} Once Wilson arrived at the apartment complex, she parked her vehicle

next to the white truck and waited for Williams. However, Williams did not exit

the truck, and after waiting for some time, Wilson got out of her vehicle and opened

one of the truck’s passenger-side doors. When she opened the door, she saw that

Marquavius Shurelds (“Shurelds”), not Williams, was inside of the truck.

According to Wilson, it appeared that Shurelds was searching for something inside

of the truck. Wilson asked Shurelds about Williams’s whereabouts, and Shurelds

responded that Williams was inside one of the apartments. Although Shurelds

suggested that Wilson follow him into the apartment, Wilson instead returned to her

-2-
Case No. 1-20-10

vehicle and waited for Williams to emerge from the apartment. However, Williams

again failed to appear.

{¶4} Eventually, Wilson got out of her vehicle for a second time, approached

the white truck, and began transferring clothes from the truck to her vehicle. A.W.

remained in his car seat in the back seat of Wilson’s vehicle. As Wilson was

transferring the clothes, Shurelds “grabbed [her] up from the back, covering [her]

mouth[,]” and told her “to shut * * * up or he was going to kill [her].” (Dec. 10-11,

2019 Tr., Vol. I, at 140-141). Shurelds then forced Wilson into the apartment, where

he proceeded to wrap a blanket around her head. With the blanket around her head,

Wilson could not see anything that was happening inside of the apartment.

{¶5} Some time later, the blanket was taken off of Wilson’s head. She

noticed that Williams, who had been stabbed, was “bleeding out” on the floor and

that Laws and another person, Lamont Jones (“Jones”), were inside of the

apartment. (Id. at 144). A.W. was then carried into the apartment and returned to

Wilson. As Wilson held A.W., Laws stood inside of the apartment and pointed a

gun at them. While Laws held Wilson and A.W. at gunpoint, Shurelds paced the

floor of the apartment and talked to Williams. Shurelds told Williams, “We need

that.” (Id. at 147). Williams responded that they “c[ould] have that” and that he

“had the key in his pocket.” (Id. at 148). After the key was retrieved from

Williams’s pocket, Jones left the apartment with the key.

-3-
Case No. 1-20-10

{¶6} After Jones left, Laws demanded that Wilson and Williams give him

their cell phones and passcodes so that he could “turn the locations off.” (Id. at 148-

149). Wilson and Williams both complied. Once he had turned off the location

services features on Wilson’s and Williams’s cell phones, Laws kept the phones.

{¶7} After some time, Jones returned to the apartment with money. When

Shurelds saw the money that Jones had returned with, Shurelds said that “they

need[ed] more[.]” (Dec. 10-11, 2019 Tr., Vol. I, at 151). Shurelds then placed a

call to Williams’s sister, Betty, and put the phone next to Williams’s ear. Williams

told Betty that “he needed that.” (Id. at 152-153). During this time, Laws was still

holding Wilson and A.W. at gunpoint.

{¶8} After the phone call, Shurelds, Wilson, and A.W. got into a vehicle and

drove over to Betty’s house. Laws stayed behind at the apartment with Williams.

According to Wilson, when they arrived at the house, “Betty’s baby dad c[ame]

outside with a box.” (Id. at 153-154). Then, as the vehicle pulled away from Betty’s

house, Shurelds “thr[ew] out a phone.” (Id. at 154). Wilson did not know whose

phone Shurelds threw out.

{¶9} When Shurelds, Wilson, and A.W. returned to the apartment, Shurelds

and Jones began cleaning up Williams’s blood. As he was helping Shurelds clean,

Jones said to Wilson that he was “going to get [Wilson and A.W.] out of [there].”

(Id. at 155). Laws, Shurelds, and Jones then placed Williams in Wilson’s vehicle.

-4-
Case No. 1-20-10

Wilson was permitted to leave with Williams and A.W. She then drove to a hospital

to seek treatment for Williams’s injuries.

{¶10} On January 17, 2019, the Allen County Grand Jury indicted Laws on

five counts: Count One of aggravated robbery in violation of R.C. 2911.01(A)(1),

a first-degree felony; Counts Two through Four of kidnapping in violation of R.C.

2905.01(A)(2), first-degree felonies;1 and Count Five of having weapons while

under disability in violation of R.C. 2923.13(A)(2), a third-degree felony. (Doc.

No. 4). Count One of the indictment contained two specifications: a three-year

firearm specification under R.C. 2941.145(A) and a repeat violent offender

specification under R.C. 2941.149(A). (Id.). Furthermore, Counts Two through

Four each contained one three-year firearm specification under R.C. 2941.145(A)

and one repeat violent offender specification under R.C. 2941.149(A). (Id.). On

January 25, 2019, Laws appeared for arraignment with his court-appointed counsel

and pleaded not guilty to the counts and specifications of the indictment. (Doc. Nos.

11, 12).

{¶11} Following arraignment, Laws retained counsel, and on March 14,

2019, Laws’s retained counsel entered a notice of appearance. (Doc. No. 25).

Laws’s retained counsel filed various motions on behalf of Laws over the next

1
Counts Two, Three, and Four charged Laws with the kidnappings of Wilson, A.W., and Williams,
respectively.

-5-
Case No. 1-20-10

several months. However, on September 20, 2019, Laws’s retained counsel filed a

motion to withdraw on grounds that Laws had “advised that he wish[ed] to be

represented by a court appointed lawyer * * *.” (Doc. No. 47). On October 11,

2019, the trial court granted Laws’s retained counsel’s motion to withdraw. (Doc.

No. 51). In its judgment granting the motion to withdraw, the trial court noted that

Laws “stated he did not need a court-appointed attorney.” (Id.). Nevertheless, on

October 31, 2019, Laws received a second court-appointed attorney—his third

attorney overall. (Doc. No. 57).

{¶12} On November 20, 2019, Laws subpoenaed “all camera footage from

12-2-2018 from the hours of 6PM to 10PM that shows the exterior of either of the

front entrances” to the Meijer grocery store located in Lima, Ohio. (Doc. No. 91).

In a letter dated November 27, 2019, Meijer responded that “no responsive

surveillance footage exists.” (Doc. No. 117).

{¶13} On December 5, 2019, Laws filed a notice of alibi. (Doc. No. 109).

On December 6, 2019, the State filed a response to Laws’s notice of alibi. (Doc.

No. 113). The State argued that Laws’s notice failed to conform to the Rules of

Criminal Procedure and that, as a result, “any evidence offered by [Laws] * * * for

the purpose of presenting an alibi defense” should be excluded. (Id.).

{¶14} A jury trial was held on December 10-11, 2019. Before the

presentation of evidence, the trial court ruled on whether Laws would be permitted

-6-
Case No. 1-20-10

to present his alibi witnesses. Laws’s third attorney noted that although the notice

of alibi was not filed at least seven days before trial as required by Crim.R. 12.1,

Laws did not inform him about his alibi until the evening of December 4, 2019.

(Dec. 10-11, 2019 Tr., Vol. I, at 3). The trial court ruled that Laws would be

permitted to present his alibi witnesses. (Id. at 11). In addition, after the trial court

overruled the State’s objections to Laws’s notice of alibi, the trial court dismissed

Count Four of the indictment pursuant to the State’s motion. (See Dec. 10-11, 2019

Tr., Vol. I, at 13); (Doc. No. 129). Count Five of the indictment was subsequently

renumbered as Count Four.

{¶15} After these initial housekeeping matters were addressed, the State

proceeded to present its case. At the close of the State’s case, Laws moved for a

judgment of acquittal under Crim.R. 29. The trial court denied Laws’s motion.

{¶16} On December 11, 2019, the jury found Laws guilty of the remaining

counts of the indictment as well as the remaining firearm specifications. (Doc. Nos.

125, 126, 127, 128). The trial court filed its judgment entry of conviction on

December 12, 2019. (Doc. No. 129).

{¶17} On January 13, 2020, Laws’s third attorney filed a motion to withdraw

from his representation of Laws on grounds that “[c]ommunication with [Laws]

ha[d] broken down.” (Doc. No. 133). On January 15, 2020, the trial court granted

Laws’s third attorney’s motion. (Doc. No. 138). Although Laws indicated that he

-7-
Case No. 1-20-10

was planning on retaining a new attorney, on January 24, 2020, Laws received a

third court-appointed attorney—his fourth attorney overall. (Doc. No. 144).

{¶18} At the February 10, 2020 sentencing hearing, the trial court found that

Laws is a repeat violent offender. (Feb. 10, 2020 Tr. at 10); (Doc. No. 157). The

trial court then sentenced Laws to 11 years in prison on Count One, 11 years in

prison on Count Two, 11 years in prison on Count Three, and 36 months in prison

on renumbered Count Four. (Doc. No. 157). In addition, the trial court sentenced

Laws to 3 years in prison with respect to each of the repeat violent offender

specifications associated with Counts One through Three. (Id.). The trial court also

sentenced Laws to a mandatory term of 3 years in prison with respect to each of the

firearm specifications associated with Counts One through Three. (Id.). The trial

court ordered that all of these prison terms be served consecutively for an aggregate

term of 54 years in prison. (Id.). Finally, because Laws was on postrelease control

(“PRC”) at the time the instant offenses were committed, the trial court ordered that

1,327 days of PRC time be served consecutively to the aggregate 54-year prison

term. (Id.). The trial court filed its judgment entry of sentence on February 11,

2020. (Id.).

{¶19} On February 27, 2020, Laws filed a notice of appeal. (Doc. No. 162).

He raises three assignments of error for our review.

-8-
Case No. 1-20-10

Assignment of Error No. I

The trial court erred in denying appellant’s motion for acquittal
at the close of the State’s case in chief, where there was legally
insufficient evidence to establish each material element of the
offenses beyond a reasonable doubt.

{¶20} In his first assignment of error, Laws argues that the trial court erred

by denying his Crim.R. 29 motion because the State presented insufficient evidence

to support his aggravated-robbery and kidnapping convictions.

{¶21} Because the purpose of a Crim.R. 29 motion for acquittal “is to test

the sufficiency of the evidence presented at trial,” we “review[] a denial of a Crim.R.

29 motion for judgment of acquittal using the same standard that is used to review

a sufficiency of the evidence claim.” State v. Willis, 12th Dist. Butler No. CA2009-

10-270, 2010-Ohio-4404, ¶ 9, citing State v. Terry, 12th Dist. Fayette No. CA2001-

07-012, 2002-Ohio-4378, ¶ 9, citing State v. Williams, 74 Ohio St.3d 569, 576

(1996); State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶ 11, citing

State v. Carter, 72 Ohio St.3d 545, 553 (1995). “An appellate court’s function when

reviewing the sufficiency of the evidence to support a criminal conviction is to

examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus, superseded by state constitutional amendment on other grounds, State v.

Smith, 80 Ohio St.3d 89 (1997). Consequently, “[t]he relevant inquiry is whether,

-9-
Case No. 1-20-10

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

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

reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither

resolve evidentiary conflicts nor assess the credibility of witnesses, as both are

functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-

120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio

App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist.

Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test

of adequacy rather than credibility or weight of the evidence.”), citing State v.

Thompkins, 78 Ohio St.3d 380, 386 (1997).

{¶22} Laws was convicted of one count of aggravated robbery, two counts

of kidnapping, and one count of having weapons while under disability. However,

on appeal, Laws argues only that the trial court erred by denying his Crim.R. 29

motion with respect to his aggravated-robbery and kidnapping convictions. The

offense of aggravated robbery is contained in R.C. 2911.01, which provides, in

relevant part, that “[n]o person, in attempting or committing a theft offense, as

defined in [R.C. 2913.01], or in fleeing immediately after the attempt or offense,

shall * * * [h]ave a deadly weapon on or about the offender’s person or under the

offender’s control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it[.]” R.C. 2911.01(A)(1). The offense of kidnapping

-10-
Case No. 1-20-10

is contained in R.C. 2905.01, which provides, in relevant part, that “[n]o person, by

force, threat, or deception, * * * shall remove another from the place where the other

person is found or restrain the liberty of the other person * * * [t]o facilitate the

commission of any felony or flight thereafter[.]” R.C. 2905.01(A)(2). The

aggravated robbery charged in Count One served as the predicate felony for the

kidnapping charges. (See Dec. 10-11, 2019 Tr., Vol. II, at 351).

{¶23} At this point, we note that while Laws was indicted in terms of the

principal offenses, the State theorized that Laws acted in complicity with Shurelds

and Jones. (See Dec. 10-11, 2019 Tr., Vol. II, at 342-344). It was permissible for

Laws to be charged in this way. R.C. 2923.03(F) (“A charge of complicity may be

stated in terms of [R.C. 2923.03], or in terms of the principal offense.”). R.C.

2923.03, Ohio’s complicity statute, provides in relevant part that “[n]o person,

acting with the kind of culpability required for the commission of an offense, shall

* * * [a]id or abet another in committing the offense[.]” R.C. 2923.03(A)(2).

To support a conviction for complicity by aiding and abetting

pursuant to R.C. 2923.03(A)(2), the evidence must show that the

defendant supported, assisted, encouraged, cooperated with, advised,

or incited the principal in the commission of the crime, and that the

defendant shared the criminal intent of the principal. Such intent may

be inferred from the circumstances surrounding the crime.

-11-
Case No. 1-20-10

State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “‘“Evidence of aiding and

abetting may be shown by either direct or circumstantial evidence, and participation

in criminal intent may be inferred from presence, companionship, and conduct

before and after the offense is committed.”’” State v. Wright, 3d Dist. Hardin No.

6-15-14, 2016-Ohio-5465, ¶ 9, quoting State v. Rowe, 3d Dist. Seneca No. 13-10-

14, 2011-Ohio-5739, ¶ 32, quoting State v. Gragg, 173 Ohio App.3d 270, 2007-

Ohio-4731, ¶ 21 (12th Dist.). However, “‘[t]he mere presence of an accused at the

scene of the crime is not sufficient to prove, in and of itself, that the accused was an

aider and abettor.’” State v. Martinez, 3d Dist. Union Nos. 14-19-28 and 14-19-29,

2020-Ohio-4883, ¶ 24, quoting State v. Widner, 69 Ohio St.2d 267, 269 (1982). A

person who is found guilty of complicity “shall be prosecuted and punished as if he

were a principal offender.” R.C. 2923.03(F).

{¶24} Laws argues that his aggravated-robbery conviction is not supported

by sufficient evidence because the State “failed to adequately demonstrate that a

theft or attempted theft took place, which is an essential element of the aggravated

robbery charge.” (Appellant’s Brief at 10). He maintains that “[t]he record does

not indicate anywhere that [he] stole anything or that he was trying to steal

anything.” (Id.). Furthermore, concerning his kidnapping convictions, he argues

that “[i]f there were no theft or attempted theft, then there was no aggravated

robbery and if there were no aggravated robbery, there is no kidnapping under the

-12-
Case No. 1-20-10

statute.”2 (Id.). Consequently, Laws’s argument turns entirely on whether the State

presented sufficient evidence that he or his accomplices committed or attempted to

commit a “theft offense.”

{¶25} “Theft offense” is defined in part as “[a] violation of * * * [R.C.

2913.02].” R.C. 2913.01(K)(1). R.C. 2913.02 provides that “[n]o person, with

purpose to deprive the owner of property * * *, shall knowingly obtain or exert

control over * * * the property * * * [w]ithout the consent of the owner or person

authorized to give consent[.]” R.C. 2913.02(A)(1). “Deprive” means to “[w]ithhold

property of another permanently, or for a period that appropriates a substantial

portion of its value or use, or with purpose to restore it only upon payment of a

reward or other consideration” or to “[d]ispose of property so as to make it unlikely

that the owner will recover it.” R.C. 2913.01(C)(1)-(2). “Owner” means “any

person, other than the actor, who is the owner of, who has possession or control of,

2
Laws errs in asserting that “if there were no aggravated robbery, there is no kidnapping.” To sustain a
conviction for kidnapping under R.C. 2905.01(A)(2), the State is not required to prove that the defendant
actually committed the predicate felony. Instead, because R.C. 2905.01(A)(2) “punishes restraint or removal
with a certain purpose,” the State needs to prove only that the defendant removed the victim or restrained
their liberty “with the purpose to facilitate the commission of a felony.” (Emphasis sic.) State v. Seitz, 3d
Dist. Shelby No. 17-12-11, 2014-Ohio-2463, ¶ 17-18, citing State v. Matthieu, 3d Dist. Mercer Nos. 10-02-
04 and 10-02-05, 2003-Ohio-3430, ¶ 17. “‘[T]he eventual success or failure of the goal is irrelevant.’”
Matthieu at ¶ 17, quoting State v. Moore, 8th Dist. Cuyahoga No. 60334, 1992 WL 104220 (May 14, 1992).
Therefore, even if the State failed to present evidence sufficient to prove all of the elements of aggravated
robbery, including that Laws committed or attempted to commit a “theft offense,” Laws could still be
convicted of kidnapping under R.C. 2905.01(A)(2) if the State presented sufficient evidence that he removed
the victims or restrained their liberty for the purpose of facilitating the (ultimately unproven) aggravated
robbery. However, proof that the defendant actually committed the felony facilitated by the removal or
restraint is, of course, also sufficient to sustain a conviction under R.C. 2905.01(A)(2), and in light of our
conclusion below that the State presented sufficient evidence that Laws was complicit in the commission of
a “theft offense,” we need not uphold Laws’s kidnapping convictions on the alternative basis that the State
was not required to prove that Laws committed aggravated robbery.

-13-
Case No. 1-20-10

or who has any license or interest in property * * *, even though the ownership,

possession, control, license, or interest is unlawful.” R.C. 2913.01(D). “Property”

means “any property, real or personal, tangible or intangible, and any interest or

license in that property.” R.C. 2901.01(A)(10)(a).

{¶26} R.C. 2913.02(A) requires proof of two different culpable mental

states: “purpose” and “knowingly.” “A person acts purposely when it is the

person’s specific intention to cause a certain result, or, when the gist of the offense

is a prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is the offender’s specific intention to engage in

conduct of that nature.” R.C. 2901.22(A). “A person acts knowingly, regardless of

purpose, when the person is aware that the person’s conduct will probably cause a

certain result or will probably be of a certain nature.” R.C. 2901.22(B).

{¶27} After reviewing the record, we conclude that, when viewing the

evidence in a light most favorable to the State, any rational trier of fact could have

found that, at the very least, Laws aided and abetted Shurelds and Jones in the

commission of a theft offense. According to Wilson, while Laws held her and A.W.

at gunpoint, Shurelds told Williams, who was injured and bleeding on the floor, that

they “needed that.” (Dec. 10-11, 2019 Tr., Vol. I, at 147). Wilson testified that

Williams told Shurelds that Shurelds could have what he was looking for and that

Williams told Shurelds that he had a key on his person that would allow Shurelds to

-14-
Case No. 1-20-10

retrieve what he wanted. (Id. at 148). Jones, who also testified at Laws’s trial,

confirmed that he left the apartment “[t]o go get what [Williams] wanted [him] to

get,” and he clarified that he went to collect “[s]ome drugs and money.” (Id. at 182).

Jones stated that Williams wanted him to go get the drugs and money so that

Williams, Wilson, and A.W. “c[ould] get out of there.” (Id.). In addition, Wilson

testified that Shurelds was apparently dissatisfied with the amount of money with

which Jones returned and that he stated that “they need[ed] more[.]” (Id. at 151).

Wilson stated that Shurelds made Williams “straighten up to call [Betty],” which

meant that Shurelds wanted Williams “to talk correct, like as if nothing [was] going

on,” and that during the phone call with Betty, Williams told Betty that “he needed

that.” (Id. at 151-153). According to Wilson, Laws was still holding her and A.W.

at gunpoint. (Id. at 151). Further, Wilson testified that after the phone call ended,

she, A.W., and Shurelds went to Betty’s house, where a box was brought outside to

Shurelds. (Id. at 153-154). The record is unclear as to what the box contained.

{¶28} The foregoing testimony establishes that Shurelds and Jones

committed at least one theft offense on December 2, 2018. Williams, who had been

stabbed and whose child was being held at gunpoint, agreed to give Shurelds and

Jones drugs and money so that he, Wilson, and A.W. could be permitted to leave

the apartment. Although some of the property obtained by Shurelds and Jones was

apparently contraband, it was property all the same, and it is clear that Williams

-15-
Case No. 1-20-10

owned, possessed, or controlled the property. Furthermore, the manner in which

the money and drugs were obtained establishes a lack of valid consent. See State v.

Evans, 8th Dist. Cuyahoga No. 108648, 2020-Ohio-3968, ¶ 56 (“The subject

property was obtained in a threatening manner, establishing the lack of consent * *

*.”). Moreover, from the facts established by Wilson’s testimony and Jones’s

testimony, it can be readily inferred both that Shurelds and Jones knew that they

were obtaining Williams’s drugs and money without valid consent and that they

intended to permanently withhold Williams’s drugs and money from him.

{¶29} Finally, Wilson’s testimony and Jones’s testimony preclude the

possibility that Laws was merely present when the theft offense occurred. At

various points during the incident, Laws pointed his gun at Wilson and A.W. to keep

them at bay. In addition, Laws personally disabled the location-tracking features on

Wilson’s and Williams’s cell phones. Furthermore, according to Wilson, Laws

directed menacing comments toward her, such as that he would kill her if she was

not quiet and that he “might as well kill [her]” because she was “going to tell

everything.” (Dec. 10-11, 2019 Tr., Vol. I, at 143-144, 151). The totality of Laws’s

conduct on December 2, 2018 demonstrates that he shared in Shurelds and Jones’s

criminal purpose and that he supported and assisted Shurelds and Jones in the

commission of the theft offense. Accordingly, because we conclude that the State

presented evidence sufficient to show that Laws was at least complicit in the

-16-
Case No. 1-20-10

commission of a theft offense, Laws’s aggravated-robbery and kidnapping

convictions are supported by sufficient evidence.

{¶30} Laws’s first assignment of error is overruled.

Assignment of Error No. II

Appellant’s conviction was against the manifest weight of the
evidence and is contrary to law.

{¶31} In his second assignment of error, Laws argues that his aggravated-

robbery and kidnapping convictions are against the manifest weight of the evidence.

Specifically, Laws argues that “[a]s noted above in [his first assignment of error],

the State failed to prove * * * that there was a theft or attempted theft” and that

“[w]ithout a theft or attempted theft, the State’s entire case collapses as then there

is no aggravated robbery and if there is no aggravated robbery, there is no

kidnapping.” (Appellant’s Brief at 13). He concludes that “[b]ecause the State

failed to prove there was a theft and the jury convicted him anyway, the trier of fact

clearly lost its way and created * * * a manifest miscarriage of justice * * *.” (Id.).

{¶32} While Laws frames his second assignment of error as a challenge to

the weight of the evidence supporting his convictions and sets forth the standard of

review for a manifest-weight challenge in his appellate brief, he fails to advance a

proper manifest-weight argument. Laws does not attack the credibility of the State’s

witnesses. He does not maintain that the jury drew unreasonable inferences from

the evidence presented or that the jury erred in resolving evidentiary conflicts. Nor

-17-
Case No. 1-20-10

does Laws argue that the jury lost its way by discounting the testimony of his alibi

witness. Instead, Laws rehashes the sufficiency-of-the-evidence arguments he made

under his first assignment of error. However, “‘sufficiency and manifest weight are

two separate, legally distinct arguments.’” State v. Secriskey, 9th Dist. Summit Nos.

28093 and 28094, 2017-Ohio-4169, ¶ 26, quoting State v. Vicente-Colon, 9th Dist.

Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20. This court will not develop a

manifest-weight argument on Laws’s behalf, and we therefore decline to consider

Laws’s second assignment of error any further. See id., citing State v. Sadeghi, 9th

Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 32; State v. Shannon, 9th Dist.

Lorain No. 13CA010517, 2015-Ohio-438, ¶ 25, quoting State v. Auerswald, 9th

Dist. Medina No. 11CA0053-M, 2013-Ohio-742, ¶ 50.

{¶33} Laws’s second assignment of error is overruled.

Assignment of Error No. III

The cumulative effect of appellant’s trial counsel’s failures
deprived appellant of his rights to a fair trial and the effective
assistance of counsel as guaranteed by the Sixth Amendment to
the United States Constitution.

{¶34} In his third assignment of error, Laws argues that he received

ineffective assistance of counsel.

{¶35} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

-18-
Case No. 1-20-10

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment. Strickland at 689.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

{¶36} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Id. at 142, quoting Strickland at 694. “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

{¶37} As noted in the opening pages of this opinion, Laws was represented

by four different attorneys during the pendency of this case at the trial court level.

-19-
Case No. 1-20-10

Laws takes issue with the performance of his first three attorneys.3 Laws claims

that his first three attorneys were ineffective in seven different respects. He also

maintains that the cumulative effect of his attorneys’ alleged errors rendered their

representation ineffective.

{¶38} In his first claim of ineffective assistance of counsel, Laws argues that

each of his first three attorneys performed deficiently with respect to the handling

of his alibi defense. Laws contends that he has consistently maintained that he spent

December 2, 2018 at his aunt’s house, leaving only to go to the Meijer store in Lima.

He notes that his first two attorneys did not attempt to obtain the surveillance video

recordings from Meijer, and he asserts that by the time his third attorney requested

the footage from the evening in question, “the footage was lost.” (Appellant’s Brief

at 16-17). Laws thus argues that his first two attorneys were ineffective because

they failed to act to obtain the surveillance video recordings—evidence that,

according to Laws, would have corroborated his alibi and changed the outcome of

his trial.

{¶39} However, under the facts of this case, we cannot determine whether

Laws’s first two attorneys performed deficiently by failing to request the

surveillance video recordings or whether Laws was prejudiced by their inaction.

3
Laws’s fourth attorney, who was appointed to represent him after he had been found guilty but before
sentencing, is counsel of record in this appeal.

-20-
Case No. 1-20-10

Importantly, contrary to Laws’s assertion, the record does not clearly indicate that

the surveillance footage was “lost.” Rather, in response to the subpoena, Meijer’s

representative said only that “after a review of applicable records, no responsive

surveillance footage exists.” (Doc. No. 117). From this statement, it is as possible

that the footage was never archived as it is that it was archived but later deleted.

Furthermore, even if the footage was saved but later deleted, there is nothing in

Meijer’s response letter or elsewhere in the record that speaks to Meijer’s policy

regarding the retention of video surveillance footage. Consequently, we cannot rule

out the possibility that the footage was archived but that it was erased well before

Laws’s first two attorneys began representing him. In addition, the surveillance

footage, if it ever existed, is not part of the record. We simply do not know whether

there was in fact surveillance footage depicting Laws at Meijer on the evening of

December 2, 2018, and we cannot “blindly accept” Laws’s claim that the

surveillance footage would have proven that he was there. See State v. Moorer, 10th

Dist. Franklin No. 14AP-224, 2014-Ohio-4776, ¶ 29. Laws’s argument relies

entirely on speculation—speculation that his first two attorneys could have obtained

the surveillance video footage and speculation about what the footage would have

depicted. Ultimately, “[s]peculation is insufficient to establish ineffective

assistance.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 217, citing State

-21-
Case No. 1-20-10

v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 219 and State v. Elmore, 111 Ohio

St.3d 515, 2006-Ohio-6207, ¶ 121.

{¶40} Laws also objects to the way in which his third attorney handled his

alibi defense. He claims that there were four people with him at his aunt’s house on

December 2, 2018, and he argues that his third attorney acted unreasonably by

calling only one of them to testify because “[t]he calling of additional witness[es]

would have bolstered the case and would have certainly given the jury reasonable

doubt.” (Appellant’s Brief at 17). Laws further notes that one of the four potential

alibi witnesses was not subpoenaed because there might have been a warrant for his

arrest, and he maintains that the warrant should not have prevented his third attorney

from attempting to call this person as a witness.

{¶41} This argument is also unavailing. As a general rule, “counsel’s

decision whether to call a witness falls within the rubric of trial strategy and will not

be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490

(2001). There are any number of reasons why Laws’s third attorney might have

elected to present the testimony of only one alibi witness. For example, with respect

to the potential witness who might have had a warrant for his arrest, Laws’s third

attorney might have concluded that knowledge of the outstanding warrant would

negatively affect the jury’s assessment of his credibility. See State v. Jones, 8th

Dist. Cuyahoga No. 81112, 2003-Ohio-3004, ¶ 28. Furthermore, as two names

-22-
Case No. 1-20-10

appear on Laws’s notice of alibi, the record reflects that Laws’s third attorney

originally intended to call two alibi witnesses. (See Doc. Nos. 109, 110). The fact

that only one of these witnesses ultimately testified could be the product of Laws’s

third attorney’s reasoned determination, after further investigation, that the other

witness was not believable or that the witness whose testimony was presented could

offer the most persuasive account of Laws’s alibi. Ultimately, Laws’s third

attorney’s reasons for calling only one alibi witness are not reflected in the record,

and given the presumption of competent representation, we cannot conclude that

Laws’s third attorney’s decision fell outside of the range of reasonable professional

judgment.

{¶42} In his second claim of ineffective assistance of counsel, Laws argues

that his third attorney, who represented him during his trial, was ineffective because

he failed to secure the admission of “a telephone recording that would have cast

doubt over [Wilson’s] story.” (Appellant’s Brief at 18). The alleged recording is

not part of the record. Instead, the supposed contents of the recording were entered

into the record through the proffered testimony of Toccara Laws (“Toccara”),

Laws’s cousin. Toccara testified that she received a recording from Jones in which

Wilson’s mother can be heard telling Jones that “if she don’t get the money[,] she’s

going to go to the police.” (Dec. 10-11, 2019 Tr., Vol. II, at 321). According to

Toccara, Jones can then be heard “say[ing] [that] she was going to get it.” (Id.).

-23-
Case No. 1-20-10

Laws faults his third attorney for attempting to use Toccara to introduce the alleged

recording because Toccara “had nothing to do with the recording.” (Appellant’s

Brief at 18). He argues that his third attorney should have asked Wilson about the

recording and that he should have “call[ed] [Jones] or [Wilson’s mother] to the stand

to authenticate the recording and offer testimony about the recording, which was

potentially exculpatory in nature.” (Id.).

{¶43} For the sake of Laws’s argument, we will assume that the recording

exists, that Toccara accurately described the contents of the recording, and that,

despite a multitude of relevancy and hearsay issues, the recording would have been

admissible both as substantive evidence and for purposes of impeachment. We will

also assume that Laws’s third attorney rendered deficient performance by failing to

ensure that the recording was admitted at trial. Even so, we cannot conclude that

there is a reasonable probability that Laws’s trial would have ended differently had

the recording been admitted. Notably, Laws’s arguments about the recording lack

any reference to prejudicial effect, other than broad declarations that the recording

would have “cast doubt” over Wilson’s testimony and that the recording was

“potentially exculpatory.” Without more, conclusory statements such as these “are

insufficient to find that counsel was ineffective.” State v. Line, 3d Dist. Allen No.

1-19-07, 2019-Ohio-4221, ¶ 13, citing State v. Gibson, 78 Ohio App.3d 501 (10th

Dist.1992). Regardless, we fail to see how admission of the recording would have

-24-
Case No. 1-20-10

had a material effect on the outcome of Laws’s trial. The recorded conversation

does not, in any way, serve to negate any of the elements of any of the offenses of

which Laws was convicted. Furthermore, since Wilson’s mother, rather than

Wilson, was the person heard demanding money from Jones, the recording would

have been of limited value in impeaching Wilson’s testimony. Finally, even if the

recording could have been successfully used to impeach Wilson’s testimony, Jones,

the target of the apparent extortion scheme, also offered testimony that implicated

Laws in the offenses, and Laws does not specify how the recording could have been

used to undermine Jones’s testimony. (See Dec. 10-11, 2019 Tr., Vol. I, at 179-180,

187-188). Accordingly, we cannot say that Laws suffered prejudice.

{¶44} In his third claim of ineffective assistance of counsel, Laws argues that

his first three attorneys were ineffective because they failed to file any “substantive

pretrial motions,” specifically motions to suppress evidence. (Appellant’s Brief at

18). This argument is without merit. “The failure to file a motion is not per se

ineffective assistance of counsel.” State v. Costell, 3d Dist. Union No. 14-15-11,

2016-Ohio-3386, ¶ 161, citing State v. Schlosser, 3d Dist. Union No. 14-10-30,

2011-Ohio-4183, ¶ 34, citing In re Smith, 3d Dist. Hancock No. 5-01-34, 2002 WL

255126, *6 (Feb. 22, 2002). “‘Without proving that trial counsel was deficient for

failing to make certain motions and that those motions had a reasonable probability

of success, the ineffective assistance of counsel claim fails.’” Id.,

-25-
Case No. 1-20-10

quoting Schlosser at ¶ 34. Here, although Laws faults his first three attorneys for

failing to file certain pretrial motions, he makes no argument whatsoever as to

whether any of these proposed motions had a reasonable probability of success. As

a result, Laws’s third claim of ineffective assistance fails.

{¶45} Laws’s fourth claim of ineffective assistance of counsel is based on

his contention that his third attorney failed to adequately prepare for trial. Laws

argues that the 40 days that his third attorney had to prepare for trial “was clearly

not enough time.” (Appellant’s Brief at 18). He observes that his third attorney did

not file the notice of alibi in a timely fashion and that he did not notify the State

until the second day of trial that Toccara would be offered as a witness. (Id.). He

claims that had his third attorney “conducted a proper pretrial investigation and

actually spent some time with [him]” before trial, his third attorney “would have

had [Toccara’s] name well before the trial date.” (Id.).

{¶46} We find no merit in Laws’s argument. The record belies Laws’s claim

that his third attorney’s inadequate pretrial investigation led to his belatedly-filed

notice of alibi and to the untimely notification of his intent to call Toccara as a

witness. Although Laws once complained that he had not talked to his third attorney

for longer than an hour at any one time in the weeks leading up to his trial, Laws

nonetheless stated that he had “told [his] lawyer who [he] wanted as [his]

witnesses.” (Dec. 10-11, 2019 Tr., Vol. I, at 10-11). The record thus supports that,

-26-
Case No. 1-20-10

in the limited time that he had before trial, Laws’s third attorney spoke to Laws

regarding the witnesses that Laws desired to present. Yet, at trial, Laws’s third

attorney indicated that he was not told about the identities of Laws’s two potential

alibi witnesses until less than a week before trial and that he was not informed about

Toccara’s proposed testimony until the morning of the second day of trial. (Dec.

10-11, 2019 Tr., Vol. I, at 3, 6); (Dec. 10-11, 2019 Tr., Vol. II, at 311, 315). This

suggests that the late filings and notifications were attributable not to Laws’s third

attorney’s lack of investigation but to Laws’s last-second disclosures. Moreover, at

least with respect to Laws’s potential alibi witnesses, Laws was not prejudiced

because the trial court permitted Laws to present his alibi witnesses notwithstanding

the fact that his notice of alibi was filed less than seven days before trial. (Dec. 10-

11, 2019 Tr., Vol. I, at 12); (Dec. 10-11, 2019 Tr., Vol. II, at 300).

{¶47} Laws “has the burden of demonstrating that his counsel rendered

ineffective assistance by failing to conduct an adequate investigation.” State v.

Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 212, citing State v. Hunter, 131

Ohio St.3d 67, 2011-Ohio-6524, ¶ 104, citing Strickland, 466 U.S. at 687. He has

failed to point to anything in the record that affirmatively shows what his third

attorney did or failed to do in preparation for trial. “Absent any indication in the

record * * * that counsel failed to properly investigate the case and adequately

prepare for trial and given the presumption of competent representation, we cannot

-27-
Case No. 1-20-10

conclude that counsel’s performance fell below an objective standard of

reasonableness.” State v. Griffin, 3d Dist. Allen No. 1-03-31, 2004-Ohio-287, ¶ 17.

{¶48} In Laws’s fifth claim of ineffective assistance of counsel, Laws argues

that his third attorney ineffectively cross-examined the State’s witnesses. He argues

that his third attorney did not “vigorously question” the witnesses and that “at no

point did he try to establish [that] there was no theft, which was the basis of his

Crim.R. 29 motion.” (Appellant’s Brief at 19). In addition, Laws maintains that his

third attorney “did very little to challenge any of the scientific evidence presented,”

and he seems to fault his third attorney for relying solely on cross-examination to

challenge the State’s scientific evidence. (Id.).

{¶49} This claim is also without merit. “‘The extent and scope of cross-

examination clearly fall within the ambit of trial strategy, and debatable trial tactics

do not establish ineffective assistance of counsel.’” State v. Cooperstein, 12th Dist.

Warren No. CA2018-09-117, 2019-Ohio-4724, ¶ 29, quoting State v. Leonard, 104

Ohio St.3d 54, 2004-Ohio-6235, ¶ 146. Moreover, “it is generally a legitimate trial

strategy for defense counsel not to present expert testimony and instead rely upon

cross-examination of a state’s expert to rebut evidence of a crime.” State v. Green,

12th Dist. Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 43. Typically, then,

“‘the failure to call an expert and instead rely on cross-examination does not

constitute ineffective assistance of counsel.’” Cooperstein at ¶ 27, quoting Hunter

-28-
Case No. 1-20-10

at ¶ 66. While we do not want to give short shrift to Laws’s arguments, after

reviewing Laws’s third attorney’s cross-examination of the State’s witnesses, we

simply cannot find any basis for concluding that his cross-examination was

professionally unreasonable. Laws’s third attorney tried to draw out inconsistencies

or contradictions in the testimonies of the State’s witnesses where he could, and he

posed informed questions to the State’s scientific expert. Although the cross-

examination may not have been as zealous or as probing as Laws wishes, it certainly

was not tantamount to no cross-examination at all. Moreover, Laws once again fails

to show, or even argue, that he was prejudiced. “Had [Laws’s third attorney] asked

more questions, there is no indication that the answers would have been helpful to

[his] defense, or that further cross-examination would have resulted in * * * not-

guilty verdict[s].” Id. at ¶ 29. Thus, with respect to his fifth claim, we conclude

that Laws has failed to demonstrate that he received ineffective assistance of

counsel.

{¶50} In Laws’s sixth claim of ineffective assistance of counsel, Laws argues

that his third attorney was ineffective in the presentation of the alibi defense and in

the way that he attempted to introduce the audio recording. Specifically, Laws again

critiques both the fact that his third attorney presented only one alibi witness and

the fact that Toccara’s testimony had to be proffered because she was not disclosed

as a witness until the second day of trial. (Appellant’s Brief at 19). He also renews

-29-
Case No. 1-20-10

his argument that his third attorney was ineffective because he failed to use Wilson’s

mother or Jones to authenticate the audio recording and because he did not question

Wilson’s mother or Jones about the recorded conversation. However, we have

already rejected these exact arguments in the context of Laws’s first and second

ineffective-assistance claims. Accordingly, we need not consider Laws’s sixth

claim any further.

{¶51} In his seventh claim of ineffective assistance of counsel, Laws argues

that his third attorney’s decision to waive opening and closing statements

constituted ineffective assistance of counsel. We disagree. “It is widely established

that the decision to make an opening or closing statement is considered a tactical

decision or trial strategy, which does not rise to the level of ineffective assistance.”

State v. Lawrence, 3d Dist. Putnam No. 12-15-11, 2016-Ohio-2768, ¶ 37. While it

might have been preferable for Laws’s third attorney to make opening and closing

statements, we cannot say that it was entirely outside the range of reasonable

professional judgment. Laws’s entire defense strategy was based on proving that

he was not present at the apartment during the incident on December 2, 2018. It

was a straightforward defense, which did not require clarification via thorough

opening and closing statements. Although Laws’s third attorney’s decision to focus

solely on Laws’s alibi rather than putting some focus on potential deficiencies in the

State’s case might be a debatable trial tactic, it was not an obviously flawed decision.

-30-
Case No. 1-20-10

Laws’s third attorney’s decision to forgo opening and closing statements was

entirely consistent with the overall defense strategy. See State v. Keith, 79 Ohio

St.3d 514, 537 (1997) (trial counsel’s decision to forgo opening and closing

statements in penalty phase of capital case was not unreasonable as it “complied

with appellant’s decision not to present mitigating evidence and comported with his

claims of innocence”). In any event, Laws has failed to articulate precisely how he

was prejudiced by his third attorney’s decision to opt out of opening and closing

statements. Accordingly, Laws’s seventh claim of ineffective assistance of counsel

fails as well.

{¶52} Finally, Laws argues that even if some of his claims of ineffective

assistance of counsel fail on an individual basis, his first three attorneys’ deficient

conduct, when viewed cumulatively, deprived him of the effective assistance of

counsel. Yet, we have for the most part determined that Laws’s first three attorneys

either did not render professionally deficient or unreasonable performance or that

the record does not contain sufficient information to draw conclusions about the

reasonableness of their performance. In only one instance did we assume deficient

performance on the part of Laws’s attorneys, and in that instance, we concluded that

Laws failed to establish prejudice. In short, given the particular manner in which

we resolved each of Laws’s individual claims of ineffective assistance of counsel,

-31-
Case No. 1-20-10

we have no basis for concluding that Laws’s attorneys’ purported deficiencies

combined to deny Laws a fair trial.

{¶53} Laws’s third assignment of error is overruled.

{¶54} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr

-32-