State v. Escobar

[Cite as State v. Escobar, 2021-Ohio-4001.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-200423
C-200424
Plaintiff-Appellee, : TRIAL NOS. C-20CRB-4924
C-20CRB-1961
vs. :

STEPHEN ESCOBAR, :
O P I N I O N.
Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: November 10, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Stephen Escobar appeals his two theft convictions after two bench

trials. Raising four assignments of error, Escobar contends that he was denied the

effective assistance of counsel because counsel failed to inform him of his right to a

jury trial at a time when he could timely request a jury trial, denied his right to

counsel in his second trial, and denied his right to fair trials due to judicial bias, and

that his convictions were against the manifest weight of the evidence. For the

following reasons, we affirm the judgments of the trial court.

Pretrial Proceedings

{¶2} On January 27, 2020, Stephen Escobar was charged with theft by

deception for depriving Islam Kelishov of $435 after offering to sell him an iPhone

and taking the cash and the iPhone. While that case was pending, a second theft

charge was filed March 8, 2020, alleging that Escobar offered to sell an iPhone to

Vianey Santiago for $400 and took the money and the iPhone. Escobar pled not

guilty to both charges.

{¶3} Escobar filed a discovery request and a request to preserve all

recordings. The trial was continued twice at the request of the state because the

witnesses did not appear and once at the request of the defense because the state had

not provided discovery. After discovery was provided, Escobar filed a motion to

compel a complete photo lineup.

{¶4} On the morning of trial, both counsel informed the court that they

were ready to proceed to trial, and the trial court decided to recess for lunch and

begin the trial later that afternoon. An in-chambers discussion was held before the

recess.

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{¶5} When they reconvened, Escobar informed the court that he wanted to

change his pleas. After another in-chambers discussion, no pleas were forthcoming.

Instead, the cases proceeded to trial.

{¶6} Escobar requested a jury trial, and the state objected to a continuance.

Counsel explained that she was ineffective because she had not filed a jury demand

and had not discussed a jury trial with Escobar until that day. She further explained

that after she informed Escobar of the in-chambers discussion, he decided to request

a jury trial, and counsel agreed with that decision. The court denied the request.

{¶7} Then counsel informed the court that there was an outstanding motion

to compel that had not been addressed because the case was going to be dismissed

that day. In discovery, the state had provided one page of a photo lineup, that was

numbered one of eight pages. Escobar had not received the remaining seven pages.

The prosecutor initially stated that he was unable to obtain the missing pages

because the officer was on paternity leave. However, the previous week, the

prosecutor informed Escobar that the other pages were unavailable. The prosecutor

informed the court that the state did not have and could not obtain the missing

pages.

{¶8} Escobar’s counsel had engaged in an email exchange with the

prosecutor and was informed by the prosecutor that no other pages were available.

Escobar’s counsel requested that the state not be able to introduce evidence of a

photo lineup as a sanction. Counsel also stated that she had an agreement with the

prosecutor to set the matter for a nonjury trial and speak to the officer about the

missing pages at that time. The court concluded that the state had provided all

available discovery and overruled the request for a sanction. The cases proceeded to

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bench trials.

The First Trial

{¶9} A certified legal intern from the Hamilton County Public Defender’s

Office, who was under the supervision of Escobar’s attorney, gave the opening

statement and questioned the witnesses.

{¶10} During the first trial, both prosecuting witnesses identified Escobar as

the person whom they met to purchase the iPhone. Vianey Santiago Vega testified

that she made the arrangements to purchase the phone on OfferUp, and they met at

her house. She identified Escobar as the person she met with for approximately 45

minutes. Escobar had given the phone to her son, and she gave Escobar $400.

Escobar said that he had to do one more thing to the phone and grabbed the phone

from her son. Then Escobar left with the phone and the money.

{¶11} On cross-examination, Vega testified that when she went to the police

station, she showed the officer the OfferUp profile picture, and the profile picture

matched Escobar’s BMV photo. Vega also identified Escobar as the person in the

profile picture.

{¶12} Vega’s son, Angel Abdiel Santiago Vega, testified that he was present to

help his mother because she is not fluent in English. He also identified Escobar as

the person who took the phone and the money. Vega estimated that they interacted

with Escobar for approximately 20-30 minutes. After Vega’s testimony, the state

rested.

{¶13} During closing remarks, the legal intern argued that both of the state’s

witnesses had misidentified Escobar as the seller, and that the profile picture was not

Escobar. The court reviewed the profile picture which was a very dark, blurry, black

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and white photo less than an inch in size. The court noted that he could not

determine whether the photo was of Escobar, but the witnesses identified Escobar as

the person who met them.

{¶14} The intern further argued that the in-court identification was

insufficient to prove that Escobar was guilty, and that the witnesses had not

previously identified Escobar as the culprit.

{¶15} The court asked Escobar’s counsel why a motion to suppress on that

basis had not been filed. Counsel responded that the profile picture was clearly not

Escobar, so the defense did not want to suppress it. Additionally, counsel alleged

that the only reason the witnesses identified Escobar in court was because he was the

defendant, and that the witnesses misidentified him, a light-skinned black man, as

the person in the profile picture. Counsel claimed that the court was asking Escobar

to provide a better photograph, which was the state’s burden, and that that during

the in-chambers discussion, the court had stated that it was up to the defense to

question the credibility of the state’s witnesses.

{¶16} The court stated that counsel mischaracterized the discussion, and

informed counsel that she had “crossed the line.” The court further expressed that

the case was upsetting and frustrating because the whole premise of the trial was to

give the legal intern the opportunity to try the case with the sole purpose of setting it

up for an appeal for ineffective assistance of counsel. The court was disturbed that

counsel was playing with Escobar’s life by subjecting him to jail with the arguments

that were made.

{¶17} Then the court found Escobar guilty. In finding Escobar guilty in the

first trial, the court explained that both witnesses testified that they interacted with

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Escobar for at least 20 minutes and positively identified Escobar as the person who

took the iPhone and the money.

The Second Trial

{¶18} Counsel again requested a jury trial and an opportunity to argue the

motion to compel. Both requests were denied. Then the legal intern waived the

opening statement.

{¶19} The trial court refused to permit the legal intern to try the case because

“you’re playing with someone’s life, and I think he deserves better representation.”

Counsel responded that the defense theory was prepared by counsel, the intern, and

Escobar. When the trial court reiterated its decision to have counsel try the case

instead of the intern, counsel explained that her cross-examination would be

identical to the intern’s. The court reminded counsel that the intern was only a

student, and she was Escobar’s counsel. Counsel responded that she had made the

decision to allow the intern to sit first chair, and the court was now demanding that

she sit first chair.

{¶20} After that exchange, the trial proceeded. The state’s sole witness,

Islam Kelishov, testified that he had met with Escobar at a Fifth Third Bank to

purchase an iPhone. Kelishov identified Escobar as the person with whom he met.

He arranged the meeting through Facebook with a female. When he arrived at the

bank, he called the woman he had communicated with, and Escobar arrived.

Escobar explained that he was the woman’s friend. Escobar gave him the iPhone,

and he paid Escobar $455. When Kelishov tried to reset the phone, it did not work,

so he handed it back to Escobar to fix it. Escobar left with the phone and the money.

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{¶21} On cross-examination, Kelishov explained that the two met in the bank

lobby and spoke for a few minutes. When Kelishov went to the police station, he was

shown photos by the police officer, and he identified Escobar. He further testified

that he was 100 percent certain that Escobar was the person with whom he had met.

{¶22} During closing remarks, Escobar’s counsel again argued that the

witness misidentified Escobar. She further argued that the state did not meet its

burden because it did not secure the videotape from the bank lobby, and the police

officer did not testify.

{¶23} The trial court found Escobar guilty finding that Kelishov was 100

percent certain that Escobar was the person he met with at the bank, and that

Escobar ran off with the iPhone and the $455 that Kelishov had paid him to purchase

the phone.

{¶24} Escobar appeals presenting four assignments of error.

Ineffective Assistance of Trial Counsel

{¶25} In his first assignment of error, Escobar contends that he was denied

the effective assistance of counsel because counsel failed to inform him of his right to

a jury trial to allow him to timely demand a jury trial.

{¶26} To establish ineffective assistance of counsel, an accused must

demonstrate that counsel’s performance was deficient and that the deficient

performance prejudiced the accused. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure to make either showing is fatal to

the claim. Id. at 697. A defendant is prejudiced by counsel’s performance if there is a

reasonable probability that the outcome of the proceedings would have been

different but for the complained-of conduct. Id. at 694. “A reasonable probability is

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a probability sufficient to undermine confidence in the outcome.” Id. This court

must consider “the reasonableness of counsel’s challenged conduct on the facts of the

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

{¶27} “[T]he decision to try a petty offense case to the court rather than a

jury lies within the scope of objectively reasonable representation and, without more,

‘cannot be deemed deficient.’ ” State v. Stroud, 11th Dist. Ashtabula No. 2017-A-

0028, 2018-Ohio-904, ¶ 26, quoting State v. Todaro, 11th Dist. Ashtabula No. 2004-

A-0002, 2005-Ohio-3400, ¶ 36. In this case, counsel had ample opportunities to

request a jury. The cases were set for trial on four different occasions, yet Escobar

did not file a jury demand. On the morning of the trials, Escobar expressed his

willingness to proceed with a bench trial. Escobar admittedly questioned this

strategy after an in-chambers discussion.

{¶28} Even if the failure to file a jury demand was the result of professional

negligence, Escobar has not demonstrated that he was prejudiced by the negligence.

See State v. Fitzgerald, 9th Dist. Summit No. 22381, 2005-Ohio-2411, ¶ 13 (“merely

argu[ing] that he could have had a jury trial had his counsel filed a demand notice * *

* fails to establish prejudice”); State ex rel. Maxwell v. Trikilis, 9th Dist. Medina No.

06CA0071-M, 2007-Ohio-1355, ¶ 27 (“[w]ith respect to a jury demand, Appellant has

failed to demonstrate that the result of his bench trial would have been different but

for his counsel’s failure to make a jury demand”). Escobar has not presented any

evidence that the bench trial resulted in an unreliable result due to any bias or

prejudice by the trial court. See Fitzgerald at ¶ 13.

{¶29} Consequently, we overrule the first assignment of error.

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 OHIO FIRST DISTRICT COURT OF APPEALS

Sixth Amendment Right to Counsel

{¶30} Next, Escobar argues that he was denied his Sixth Amendment right to

counsel when the trial court removed the legal intern from the second bench trial.

{¶31} The right to counsel is guaranteed by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. “It is

well established that the right to counsel of one’s choice is an essential element of the

Sixth Amendment right to have the assistance of counsel for one’s defense.” State v.

Lacey, 8th Dist. Cuyahoga No. 102812, 2016-Ohio-1375, ¶ 15.

{¶32} Ohio limits the practice of law to those individuals who have been

admitted to the Ohio bar. See R.C. 4705.01. The Ohio Supreme Court has created a

limited exception for law students to serve as certified legal interns. See Gov.Bar R.

II. Legal interns are forbidden from making court appearances without a supervising

attorney present,1 see id., and legal interns are not licensed attorneys. See State v.

Vogel, 6th Dist. Lucas No. L-92-372, 1993 WL 496583, *1 (Dec. 3 1993).

{¶33} In this case, Escobar was represented by an attorney from the public

defender’s office who was assisted by a legal intern. During the first trial, the legal

intern, under the supervision of defense counsel, gave an opening statement, cross-

examined the witnesses, and made closing remarks. Counsel argued the pretrial

motions and moved for a judgment of acquittal. At the conclusion of the intern’s

remarks, the trial court engaged in a lengthy discussion with counsel. After that

exchange, the trial court decided not to allow the intern to conduct the second trial.

{¶34} We cannot conclude that Escobar was denied the right to counsel when

the court required counsel to try the case instead of the legal intern. Defense

1 The rule contains an exception that is inapplicable to this case.

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counsel, a criminal defense attorney from the Hamilton County Public Defender’s

Office, had represented Escobar for eight months prior to trial, including pretrial

hearings and the trial itself. Counsel conferred and consulted with Escobar to

prepare for the trial. Because Escobar was represented by counsel throughout the

proceedings, we cannot conclude that he was denied the right to counsel.

{¶35} We overrule the second assignment of error.

Judicial Bias

{¶36} In his third assignment of error, Escobar argues that he was denied his

right to a fair trial and due process of law because his trial was tainted by judicial

bias due to the court’s hostility toward counsel.

{¶37} “It is well settled that a criminal trial before a biased judge is

fundamentally unfair and denies a defendant due process of law.” State v. LaMar,

95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478

U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). Where the record

demonstrates judicial bias, the remedy is a new trial. State v. Dean, 127 Ohio St.3d

140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 2. “In determining whether purported

judicial bias resulted in a due process violation, we presume that a judge is unbiased

and unprejudiced in the matters over which he or she presides, and the appearance

of bias or prejudice must be compelling in order to overcome the presumption.”

(Citations omitted.) Cleveland v. Goodman, 8th Dist. Cuyahoga No. 108120, 2020-

Ohio-2713, ¶ 18.

{¶38} Comments by the trial court “that are critical or disapproving of, or

even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or

partiality challenge.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127

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L.Ed.2d 474 (1994). Rather, the remarks must “reveal an opinion that derives from

an extrajudicial source; and they will do so if they reveal such a high degree of

favoritism or antagonism as to make fair judgment impossible.” Id.

{¶39} Here, the trial court was admittedly troubled and frustrated by defense

counsel’s strategy and arguments. Despite the court’s frustration, there is no

indication that the trial court ruled unfairly or made any rulings that were

unsupported by the record. In finding Escobar guilty in the first trial, the court

explained that both witnesses testified that they interacted with Escobar for at least

20 minutes and positively identified Escobar as the person who took the iPhone and

the money. At the conclusion of the second trial, the court found that Kelishov

testified that he was 100 percent certain that Escobar was the person he met in the

bank lobby, and that Escobar ran from the bank with the iPhone and the $455 that

Kelishov had paid him to purchase the phone.

{¶40} The trial court’s rulings were supported by the testimony at the trials,

and this record reveals no evidence to overcome the presumption that the trial court

was not biased or prejudiced against Escobar.

{¶41} Accordingly, we overrule the third assignment of error.

The Manifest Weight of the Evidence

{¶42} In his fourth assignment of error, Escobar claims that the judgments of

the trial court were contrary to the manifest weight of the evidence.

{¶43} When considering a challenge to the weight of the evidence, an

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created a

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manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of

the evidence should be reserved for only the most “ ‘exceptional case in which the

evidence weighs heavily against the conviction.’ ” State v. Martin, 20 Ohio App.3d

172, 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.

{¶44} Generally, credibility is an issue for the trier of fact to resolve. See

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). “Because the trier of fact

sees and hears the witnesses and is particularly competent to decide ‘whether, and to

what extent, to credit the testimony of particular witnesses,’ we must afford

substantial deference to its determinations of credibility.” Barberton v. Jenney, 126

Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047,¶ 20, citing State v. Konya, 2d Dist.

Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist.

Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

{¶45} Escobar contends that the convictions were against the manifest

weight of the evidence because the in-court identifications were unreliable due in

part to an unduly suggestive out-of-court identification process. We first note that

the record does not contain any evidence to support an unduly suggestive out-of-

court identification process.

{¶46} As previously discussed, all three witnesses identified Escobar in court

as the person with whom they had met, and testified that Escobar took the phone

and the money that they had paid him for the phone. In finding Escobar guilty, the

trial court found their testimony to be credible. Because credibility is an issue for the

trier of fact to resolve, we cannot say that the court clearly lost its way and created a

manifest miscarriage of justice.

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{¶47} We overrule the fourth assignment of error.

Conclusion

{¶48} Having overruled Escobar’s four assignments of error, we affirm the

judgments of the trial court.

Judgments affirmed.
BERGERON and WINKLER, JJ., concur.

Please note:
The court has recorded its own entry this date.

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