State v. Rose

[Cite as State v. Rose, 2022-Ohio-3197.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2021-A-0015

Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas

JOHN R. ROSE,
Trial Court No. 2020 CR 00226
Defendant-Appellant.

OPINION

Decided: September 12, 2022
Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Wesley A. Johnston, 6060 Rockside Woods Boulevard, N., Suite 200, Cleveland, OH
44131 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, John Rose, appeals his conviction from the Ashtabula County

Court of Common Pleas for one count of Aggravated Murder, in violation of R.C.

2903.01(A).

{¶2} Appellant raises five assignments of error, arguing: (1) that his conviction is

not supported by sufficient evidence, (2) that his conviction is against the manifest weight

of the evidence, (3) that the trial court erred when it failed to advise appellant’s wife of her

right to refuse to testify against appellant, (4) that the trial court erred by allowing the State
to play a video and use improper jury questionnaires during voir dire, and (5) that

appellant received ineffective assistance of counsel.

{¶3} After review of the record and the applicable caselaw, we find appellant’s

assignments of error to be without merit. Appellant’s conviction is supported by sufficient

evidence and is not against the manifest weight of the evidence. The trial court erred in

violation of Evid.R. 601(B) by not making an affirmative determination on the record that

appellant’s spouse, Marie Rose, elected to testify against him. However, this error did not

affect the outcome of the trial and the result of the trial would have been the same absent

her testimony. Next, the trial court did not abuse its discretion in permitting the State to

present a demonstrative video during voir dire and the jury questionnaires used were

appropriate and modeled after R.C. 2945.25. Further, the destruction of the

questionnaires did not prejudice appellant. Finally, appellant’s trial counsel did not render

ineffective assistance of counsel.

{¶4} Therefore, we affirm the judgment of the Ashtabula County Court of

Common Pleas.

Substantive and Procedural History

{¶5} In June 2020, appellant was indicted by the Ashtabula County Grand Jury.

He was charged with: Count One: Aggravated Murder in violation of R.C. 2903.01(A), an

unclassified felony; Count Two: Murder in violation of R.C. 2903.02(A), an unclassified

felony; Count Three: Murder in violation of R.C. 2903.02(B), an unclassified felony; and

Count Four: Felonious Assault in violation of R.C. 2903.11(A)(2), a felony of the second

degree.

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 {¶6} Appellant pled not guilty and a jury trial was held. At trial, the State

presented ten witnesses, including that of appellant’s wife, Marie Rose. Appellant testified

on his own behalf.

{¶7} When the State called Marie Rose, the prosecutor stated on the record, “I

would bring to your attention that – and we discussed this briefly yesterday – I have

spoken to Marie Rose. There were people present when some statements were made to

her by the Defendant, and I will lay a foundation to that before I ask what was said.”

{¶8} Marie Rose testified that appellant lived with her in the same residence. She

said that on the date of Paul Ruffo’s death, she lived at her house with appellant, her

children, her ex-boyfriend Edward Becker, Jerry McRoberts, Gabby Reo, and Rachael

Clevenger.

{¶9} The prosecutor asked if appellant had ever talked to Marie Rose about

Ruffo. She answered that he did. The prosecutor asked if anybody else was present

during those conversations. She said that Becker was present for one of those

conversations in late May or early June of 2020. The prosecutor asked what was said

and Marie Rose said that appellant did not like Ruffo because Clevenger “was always

going to his house.” According to Marie Rose, appellant said that if Ruffo keeps giving

Clevenger heroin, “that he’s going to harm him in a way, hmm basically, just not if

Rachael’s over there. And he, ah, he kept saying that he was going to hurt him if he kept

giving her drugs, giving her H, heroin.” Marie Rose testified that appellant said he was

going to kill Ruffo. The prosecutor asked again, “were there other people around when

[appellant] said that?” Marie Rose said, “my ex-boyfriend, Edward [Becker].”

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 {¶10} On June 2, Marie Rose said that appellant left the house and later returned

around 2:00 am on June 3. She said that when appellant returned home, Becker was in

the room with her as well. She said that appellant came into the bedroom and said “I think

I screwed up this time. Um, I think I -- I might have killed him. I’m pretty sure that what he

said.” Trial counsel objected to this line of questioning and the trial court overruled the

objection. In closing arguments, the State characterized Marie Rose’s testimony as “very

powerful.”

{¶11} The State introduced evidence of the 911 call that Rachael Clevenger made

calling for an ambulance. In the call, Clevenger is distraught and unable to state the nature

of the emergency.

{¶12} The State called Deputy James Lewis from the Ashtabula County Sheriff’s

Office. The State also admitted body camera footage from Lewis while he was at the

scene. Lewis testified that on June 2, 2020, he arrived at the crime scene and saw

Clevenger screaming for help. Lewis saw blood at the scene outside and found Ruffo

laying in the bathtub with blood on his left side. He said Clevenger was “panicky and

shaken up” and stated that Ruffo had been stabbed.

{¶13} Clevenger told Lewis that appellant stabbed Ruffo and that he was wearing

camouflage shorts with construction boots and a green t-shirt. She said that she did not

see appellant stab Ruffo, but that Ruffo and appellant stepped outside to talk and that

Ruffo came back inside after being stabbed.

{¶14} Lewis took a series of photographs of the scene depicting the location of

blood in the front yard, on the sidewalk and stairway to the porch, on the front porch, and

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the doorway. A drink lid and a green t-shirt were also found outside with blood on them.

Finally, Lewis testified that Clevenger had died of a drug overdose prior to trial.

{¶15} The State next called Thomas Ricker, who responded as a paramedic to

the scene. He said that when he arrived, he evaluated Ruffo, removed him from the home

and determined that he had no heartbeat, was no longer bleeding from his wound, and

had fixed pupils. After consulting with Dr. Kehrer from the Geneva Emergency Room, it

was determined that Ruffo was deceased.

{¶16} The next witness was Dr. Evan Howe, a deputy coroner from the Ashtabula

County Coroner’s Office. Howe determined that Ruffo’s cause of death was a stab wound

to the chest and the manner of death was homicide.

{¶17} The State called Dr. Joseph Felo, a forensic pathologist from the Cuyahoga

County Medical Examiner’s Office. Felo said that one of his subordinates, Dr. Elizabeth

Mooney conducted Ruffo’s autopsy. Felo testified as to Mooney’s findings in her autopsy

report. He said that Ruffo had four sharp injuries caused by a knife on his body. One stab

wound into his chest, which was fatal, and three other sharp injuries on his left upper arm.

He also had fresh scattered blunt trauma on his body including abrasions and contusions.

{¶18} Next, the State called Deputy Leonard Emch of the Ashtabula County

Sheriff’s Office. Emch stated that he went to appellant’s residence after the stabbing.

Emch encountered Marie Rose. Emch found appellant in a locked bedroom and arrested

him. Appellant admitted to being at Ruffo’s residence and said that Ruffo “clotheslined”

him off the porch after an altercation. He said that he went home after this and denied

having any weapons at the time. When Emch arrested appellant, he was wearing a white

t-shirt, camouflage pants, and a brown belt. He admitted that he left a green shirt and hat

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at Ruffo’s residence. Deputies recovered a number of knives and sharpening stones in

appellant’s room.

{¶19} Lieutenant Bryan Rose testified that he knew Ruffo through prior contact

with him and that Ruffo did not have a reputation for violence. Lieutenant Rose was

present when deputies arrested appellant. He said that appellant admitted that he always

carried a pocketknife but that he did not know where it was at the time of his arrest.

{¶20} Detective Sean Ward testified he investigated Ruffo’s murder. He said that

based on the condition of the scene, that he believed Ruffo was stabbed in the yard and

that he walked up the porch steps to the house while projecting blood on the siding. He

said that the majority of the blood was on the left side of the steps, indicating that Ruffo

walked up the steps while bleeding.

{¶21} Ward interviewed appellant on June 3. Appellant told Ward that Ruffo was

the aggressor in the situation. Appellant did not admit to having a knife and denied

causing harm to Ruffo. Appellant told Ward that Ruffo clotheslined him over the porch.

Ward said that he observed no disturbances on the ground that would indicate Ruffo

clotheslined appellant over the railing of the porch. In the interview, appellant denied

knowing how Ruffo was stabbed but suggested that Ruffo injured himself falling over the

railing of the porch or that Clevenger stabbed him.

{¶22} On June 4, Ward executed a search warrant to obtain appellant’s DNA.

During that process, appellant asked to speak with Ward again. Ward conducted a

second interview with appellant.

{¶23} In the second interview, appellant said that he was concerned about drug

activity at Ruffo’s house and was concerned about Clevenger’s involvement with Ruffo.

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Appellant said that he went to the house and talked to Clevenger on the front porch.

Clevenger went inside and Ruffo came out. Appellant admitted that he did have a knife

on him. He said that Ruffo rushed him and the two went over the porch railing. He told

Ward that he could show him where he discarded the knife. He did not say whether Ruffo

was armed. He told Ward that he “wasn’t trying to defend anybody.”

{¶24} Ward then transported appellant to the location where he discarded the

knife. On the way to recover the knife, appellant again changed his story and said that he

had discarded two knives. One, a green handled knife that belonged to him, and the

second was a knife that belonged to Ruffo, which appellant had taken before leaving the

scene. Appellant indicated the location where he had thrown the knives and deputies

were able to recover appellant’s green handled pocketknife. The following day, a

concerned citizen reported that they had found a knife in the area where appellant’s green

handled knife was recovered. Ward stated that the two knives were similar style knives.

{¶25} Ward also obtained appellant’s Facebook records which contained

messages from appellant to Clevenger. In a message sent June 1, the day before Ruffo

was stabbed, appellant told Clevenger that “Ahhh, Mr. racoon eyes something coming

and it looks like it’s going to happen at his work, how long did u think it was gonna be be4

I found out? I also have his address! May as well tell him goodbye.” In another message

he said “I love u rachael don’t make me see that something happens to Mr. Racoon eyes

u know it won’t take much! U need to stop your nonsense.” On June 2, the day of Ruffo’s

death, appellant told Clevenger that “Raccoon eyes is a dead motherf*****!” Appellant

also told Clevenger that “Im getting pissed who you f***** with cuz if I catch you with

some1 else u know what’s going to happen.” In another message mere hours before

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Ruffo was stabbed, appellant sent a message that said, “I don’t care who the f***’s there,

Ill waste everybody.”

{¶26} Ward also reviewed Ruffo’s personal cell phone and found messages

between Ruffo and appellant. In one message four days prior to the stabbing, appellant

sent Ruffo a message that said “Ill be over in a few then ill be back every hour on the hour

hope I’m not met with resistance. Like I said kill or die for her.” In another message sent

three days before Ruffo died, appellant said “We’ll be back over with a few more cats to

party on your porch you don’t mind do you…… Didn’t think so …. Maybe you shouldn’t

lie to people and feed heroin to rachael just because it’s the only possibility of having your

way with her. When we get back we’re walking right in and if Im satisfied she’s not there

Ill apologize and walk away but it she is there Im gonna be pissed but I already know.”

On June 2, the day of Ruffo’s death, appellant sent Ruffo a message that said “U sorry

son of a b**** i can’t even tell you how f****** up sh*** about to be. If I were u I wouldn’t

even want to be in that f****** house. * * * Watch out mother***** your f****** through pimp

daddy.” Appellant sent other similar threatening messages directly to Ruffo in the days

leading up to the stabbing. Ruffo did not reply to these messages.

{¶27} The State next called Julie Altizer, a forensic scientist at the forensic and

biology section of the Bureau of Criminal Investigation (BCI). She testified that she

analyzed the DNA evidence in this case, including samples from a green tshirt,

camouflage pants, and a green knife. Altizer said that she found blood belonging to Ruffo

on each of these items.

{¶28} The State rested and appellant testified on his own behalf. He admitted that

he sent the Facebook and text messages about Ruffo but said that he was intoxicated

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when he sent the messages and often said things while intoxicated that he did not mean.

He said that his true intention was to threaten to call the police and report that Ruffo was

operating a drug house.

{¶29} Appellant testified that he and Clevenger had a feud two days prior to

Ruffo’s death and that Clevenger left to stay at Ruffo’s house. Appellant said that

Clevenger would often go to Ruffo’s house to get heroin. Appellant said that Clevenger's

heroin use bothered him and that he did not like when she obtained heroin from Ruffo.

He said that on June 2, Clevenger messaged appellant and he went to Ruffo’s house to

pick her up.

{¶30} Appellant said that he talked to Clevenger on the porch and that she went

inside to gather her belongings. Appellant said that Ruffo came out to the porch with a

knife in his hand. The two exchanged words and Ruffo ran at appellant and the two went

over the porch railing and started wrestling. Appellant said he had no idea that he stabbed

Ruffo during the encounter. He said that “I shoved and kicked him off -- my knife was

open, but I shoved and kicked him off, and I grabbed his knife because I didn’t want

another chance to get skinned. You know? I was scared.” He said he fled the scene

because he did not want to be labeled as a snitch. Initially, appellant did not believe that

he had seriously harmed Ruffo. He said that all he tried to do was shove Ruffo off him,

which was “the only way he could have got stuck.” He said that he at first refused to

believe that he could have stabbed Ruffo in self-defense and did not want to believe he

was responsible. He said that he came to believe that he “must have” stabbed Ruffo

during their scuffle on the ground because “there’s no other possibility.” Appellant

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acknowledged that he lied to Detective Ward in his first interview with him by saying that

he did not have a knife.

{¶31} The trial court instructed the jury on self-defense and the jury found

appellant guilty on all counts. The trial court found that Counts Two, Three, and Four

merged with Count One for purposes of sentencing. The court sentenced appellant to life

in prison without the possibility of parole.

{¶32} Appellant timely filed this appeal asserting five assignments of error. After

filing his appeal, he sought to supplement the record with a video that the prosecutor

played for the jury during voir dire and jury questionnaires used during voir dire. We

remanded to the trial court to supplement the record. After a hearing, the trial court issued

a March 7, 2022 judgment entry supplementing the record with the prosecutor’s jury video

and with the blank jury questionnaires used during void dire. However, the court indicated

that the practice in the Ashtabula County Court of Common Pleas is to destroy the

completed questionnaires after the jury has been selected.

{¶33} After this, appellant again sought a limited remand to clarify a discrepancy

between the trial transcript and the trial court’s March 7, 2022 judgment entry. On remand,

the trial court said that appellant had not objected to the use of the jury video. The

transcript does indicate that appellant objected to its use. We overruled the request for

remand and stated that “[b]ecause there is an inconsistency between what is stated in

the entry on remand and what is written in a transcript of proceedings, the transcript

controls.”

Assignments of Error and Analysis

{¶34} Appellant’s first and second assignments of error state:

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 {¶35} “[1.] ROSE’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE

AS A MATTER OF LAW.”

{¶36} “[2.] ROSE’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

{¶37} Appellant asserts that his conviction was not supported by sufficient

evidence and that it was against the manifest weight of the evidence. App.R. 16(A)(7)

requires an appellant's brief to provide “[a]n argument containing the contentions of the

appellant with respect to each assignment of error presented for review and the reasons

in support of the contentions, with citations to the authorities, statutes, and parts of the

record on which appellant relies.” “It is not an appellate court's duty to guess the

arguments of an appellant.” Dennis v. Nickajack Farms, Ltd., 11th Dist. Geauga No.

2014–G–3188, 2014-Ohio-5468, ¶ 6.

{¶38} The first two assignments of error in appellant’s brief merely provide

citations to authority without offering any argument or any citation to the record. This

constitutes a failure to comply with App.R. 16 for which this court could summarily dismiss

these assignments of error. Nevertheless, we have conducted a review of the entire

record and address these assignments on a merit basis. See City of Aurora v. Hale, 11th

Dist. Portage No. 88-P-2015, 1989 WL 85675, *1, (July 28, 1989).

Sufficiency of the Evidence:

{¶39} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient

to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St. 3d 380,

386, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary (6 Ed.1990) 1433; See also

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Crim.R. 29(A). The appellate court’s standard of review for sufficiency of evidence is to

determine, after viewing the evidence in a light most favorable to the prosecution, whether

a rational trier of fact could find the essential elements of the crime proven beyond a

reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus.

{¶40} When evaluating the sufficiency of the evidence, we do not consider its

credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if

believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails

a review of the elements of the charged offense and a review of the State’s evidence.

State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.

Manifest Weight of the Evidence:

{¶41} “Although a court of appeals may determine that a judgment of a trial court

is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.” Thompkins, 78 Ohio St. 3d at 389. Weight

of the evidence concerns “the inclination of the greater amount of credible evidence,

offered in a trial, to support one side of the issue rather than the other. It indicates clearly

to the jury that the party having the burden of proof will be entitled to their verdict, if, on

weighing the evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them.” (Emphasis sic.) Id.

at 386, quoting Black’s Law Dictionary 1594 (6th Ed.1990).

{¶42} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

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‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

Id.

{¶43} The reviewing court “weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. The discretionary power to

grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” Id. at 387, quoting State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶44} The trier of fact is the sole judge of the weight of the evidence and the

credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-

Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The

trier of fact may believe or disbelieve any witness in whole or in part, considering the

demeanor of the witness and the manner in which a witness testifies, the interest, if any

of the outcome of the case and the connection with the prosecution or the defendant. Id.,

quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced

at trial, must defer to the weight and factual findings made by the jury. State v. Brown,

11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at 390 and

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of the

syllabus.

{¶45} A finding that a judgment is supported by the manifest weight of the

evidence necessarily means the judgment is supported by sufficient evidence. State v.

Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.

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 {¶46} In this case, appellant was convicted of Aggravated Murder in violation of

R.C. 2903.01(A), which provides that: “No person shall purposely, and with prior

calculation and design, cause the death of another or the unlawful termination of another's

pregnancy.” The trial court gave the jury a self-defense instruction at appellant’s request.

The General Assembly amended the provisions in R.C. 2901.05 that define self-defense

effective on March 28, 2019.

{¶47} Since that amendment, R.C. 2901.05 now places the burden of persuasion

upon the State to disprove at least one of the elements of self-defense beyond a

reasonable doubt. State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 55 (11th Dist.),

appeal not allowed, 160 Ohio St.3d 1460, 2020-Ohio-5332, 157 N.E.3d 794,

reconsideration denied, 160 Ohio St.3d 1512, 2020-Ohio-6835, 159 N.E.3d 1172; R.C.

2901.05(A).

{¶48} At the time of appellant’s offense, the elements of a valid claim of self-

defense were: “(1) the defendant was not at fault in creating the situation giving rise to

the affray; (2) the defendant had a bona fide belief that he or she was in imminent danger

of death or great bodily harm and that his or her only means of escape from such danger

was in the use of such force; and (3) the defendant did not violate any duty to retreat or

avoid the danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002), citing

State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus;

State v. Mogul, 11th Dist. Trumbull Nos. 97-T-0018 & 97-T-0067, 1998 WL 258164, *3

(May 15, 1998).” Id. at ¶ 41. “The degree of force permitted depends upon what is

reasonably necessary to protect that individual from the imminent use of unlawful force.”

Id. at ¶ 42, citing Mogul, 1998 WL 258164 at *3.

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 {¶49} We must therefore determine whether the jury lost its way and created a

manifest miscarriage of justice in finding that the State disproved at least one of the

elements of self-defense beyond a reasonable doubt. At trial, the State presented

evidence to disprove that appellant was not at fault for creating the situation giving rise to

the affray and that he had a bona fide belief that he was in imminent danger of death or

great bodily harm.

{¶50} The State presented testimony from multiple Ashtabula County Sheriff’s

Office deputies. Deputy Lewis responded to the crime scene and observed Rachael

Clevenger screaming for help acting “panicky and shaken up.” The deputies observed

blood on the sidewalk and the porch and various parts of the front yard. Deputies entered

the house and found Ruffo in the tub with blood on the left side of his body.

{¶51} Clevenger’s statements to Lewis indicated that appellant had stabbed

Ruffo. She described appellant’s clothing and gave his address. She explained what

appellant had been doing at the residence before the stabbing.

{¶52} When officers arrived at appellant’s address, they found him in a locked

bedroom wearing the same clothing described by Clevenger. Appellant lied to officers

about having a knife at the scene. Appellant initially told the deputies that he and Ruffo

got into an altercation and that Ruffo clotheslined him off the porch and that he left after

that. He denied having any weapons and said that he did not know where the folding knife

that he always carries was.

{¶53} In his first interview with Detective Ward, appellant denied harming Ruffo

and denied having a knife at the time of the altercation. He denied knowing how Ruffo

was stabbed. In his second interview with Ward, appellant admitted that he had a knife

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and revealed where he had discarded the weapon. On the way to recover appellant’s

knife, he again changed his story and said that Ruffo also had a knife and that he had

discarded that weapon in the same area. This was the first time that appellant said that

Ruffo used a knife to threaten him.

{¶54} “The law is clear that lies told by an accused are admissible evidence of

consciousness of guilt, and thus of guilt itself.” State v. Robinson, 6th Dist. No. L-06-1182,

2008-Ohio-3498, ¶ 202; see also, e.g., State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-

4396, 794 N.E.2d 27, ¶ 54, (“The trier of fact was at liberty to infer consciousness

of guilt from [defendant's] lie.”).

{¶55} Appellant sent Facebook messages to Clevenger stating that he intended

to harm Ruffo. Appellant also sent text messages to Ruffo threatening harm. Appellant

sent those messages on the day of Ruffo’s death and testified that he had also been

drinking that day and was intoxicated when he sent the messages. Ruffo’s personal items

were at the scene and Ruffo’s blood was on the pants appellant was wearing when he

was arrested.

{¶56} Dr. Howe, the deputy coroner, testified that the cause of Ruffo’s death was

a stab wound to the chest and determined that the cause of death was homicide. Altizer,

the BCI investigator, said that Ruffo’s blood was found on pants appellant was wearing,

on the clothes appellant left at the scene, and that appellant’s green handled knife had

Ruffo’s blood on the blade.

{¶57} In appellant’s testimony, he denied having knowledge that he even stabbed

Ruffo and only assumed that he “must have” been stabbed during their altercation on the

ground. However, appellant fled the scene after his altercation with Ruffo and discarded

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the knives. See State v. Dillon, 2016-Ohio-1561, 63 N.E.3d 712, ¶ 49 (2nd Dist.)

(Substantial evidence of appellant’s guilt included “consciousness of guilt as evidenced

by his immediate flight,” and his lies to the police).

{¶58} The State presented sufficient evidence that appellant committed the

offense of Aggravated Murder. This evidence, if believed, can sustain the verdict against

appellant. See Thompkins, at 387. Further, based on this evidence, this is not ‘the

exceptional case in which the evidence weighs heavily against the conviction.” Martin, 20

Ohio App.3d at 175.

{¶59} Accordingly, appellant’s first and second assignments of error are without

merit.

{¶60} Appellant’s third assignment of error states:

{¶61} “[3.] THE TRIAL COURT COMMITTED REVERSED [sic] ERROR WHEN

IT ALLOW [sic] MARIE ROSE TO TESTIFY AGAINST EVID.R. 601.”

Marie Rose’s Testimony:

{¶62} In his third assignment of error, appellant argues that the trial court

committed plain error by failing to make an affirmative determination on the record that

appellant’s spouse, Marie Rose, elected to testify. Marie Rose testified that appellant

came home and told her “I think I screwed up this time. Um, I think I – I might have killed

him.” This testimony directly contradicted appellant’s testimony on his own behalf where

he stated he did not initially know that he had stabbed Ruffo and where he only later

realized that Ruffo “must have” been stabbed during their scuffle.

{¶63} Evid.R. 601(B) addresses the competency of a spouse to testify against

their partner regarding criminal activity. It provides that:

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 Every person is competent to be a witness except: * * * (B) A spouse
testifying against the other spouse charged with a crime except when
either of the following applies:
(1) A crime against the testifying spouse or a child of either spouse
is charged;
(2) The testifying spouse elects to testify.

{¶64} While Evid.R. 601(B) addresses the competency of a testifying spouse,

R.C. 2945.42 focuses on spousal privilege and states that a spouse “shall not testify

concerning communications made on to the other, * * *, during coverture, unless the

communication was made or act done in the known presence or hearing of a third person

competent to be a witness.” R.C. 2945.42 bars the accused from asserting spousal

privilege even if the third person is unable to testify. State v. Adamson, 72 Ohio St.3d

431, 433, 650 N.E.2d 875 (1995), citing See State v. Mowery, 1 Ohio St.3d 192, 438

N.E.2d 897 (1982).

{¶65} “Spousal privilege and spousal competency are distinct legal concepts

which interrelate and provide two different levels of protection for communications

between spouses.” Id. However, in cases where privilege does not apply because another

person witnessed a private act or a spousal communication, “a spouse is still not

competent to testify about those acts or communications unless she specifically elects to

testify.” Id.

{¶66} In Adamson, the trial court correctly recognized that spousal privilege did

not apply where an act was performed in the presence of a third person. Id. at 434.

However, the trial court ignored the requirements of Evid.R. 601 which “requires that the

testifying spouse to elect to testify against her spouse.” Id. “An election is “‘[t]he choice of

an alternative[;] [t]he internal, free, and spontaneous separation of one thing from another,

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without compulsion, consisting in intention and will.’” Id., quoting Black's Law Dictionary

(5 Ed.1990) 517. Unless a spouse with knowledge of a right to refuse deliberately chooses

to testify, that spouse remains incompetent to testify under Evid.R. 601(B). Id.

{¶67} The trial judge “must take an active role in determining competency, and

make an affirmative determination on the record that the spouse has elected to testify.”

Id. Merely responding to a subpoena and appearing on the witness stand does not

indicate a spouse has elected to testify. Id.

{¶68} In Adamson, the trial court failed to determine that the spouse had elected

to testify. The court said that even where trial counsel fails to object, this is clearly error.

Id. Using a plain error standard of review, the court said that the outcome of the trial would

have been different without the spouse’s testimony because the “testimony certainly was

the key factor in Adamson’s conviction for aggravated murder.” Id. at 435.

{¶69} The standard of review for plain error is the same deferential standard

applied for “reviewing ineffective assistance of counsel claims.” State v. Payne, 114 Ohio

St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306, ¶ 17. “Crim.R. 52(B) affords appellate

courts discretion to correct ‘[p]lain errors or defects affecting substantial rights’

notwithstanding the accused's failure to meet his obligation to bring those errors to the

attention of the trial court.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

N.E.3d 860, ¶ 22. Appellant bears the burden of demonstrating plain error by proving that

the outcome would have been different absent the plain error. Payne, at ¶ 17.

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 {¶70} Further, even when the error is obvious, “it must have affected substantial

rights,” meaning “‘that the trial court’s error must have affected the outcome of the trial.’”

Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Indeed, “even

if an accused shows that the trial court committed plain error affecting the outcome of the

proceeding, an appellate court is not required to correct it * * *.” Id. at ¶ 23. Courts are

cautioned “to notice plain error ‘with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.’” Barnes, at 27, quoting State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶71} Unlike in Adamson, in State v. Davis, 195 Ohio App.3d 123, 2011-Ohio-

2387, 958 N.E.2d 1260 (8th Dist.), the court found that the “outcome of the trial would

have been the same regardless of the error in admitting defendant's wife's testimony.

Reversal is not necessary to prevent a manifest miscarriage of justice, because

defendant's multiple rape and gross sexual imposition convictions are supported by the

testimony of the two victims.” Id. at ¶ 10. On the strength of the other “specific and

consistent testimony” in the case, the court could not say that the result would have been

different had the spouse not testified and was therefore not prejudicial to the defendant.

Id. at ¶ 16.

{¶72} In this case, while the State overcame any possible spousal privilege issues

by laying a foundation that third persons were present for appellant’s statements, the trial

court erred when it failed to make an affirmative determination on the record that Marie

Rose had elected to testify.

{¶73} However, we cannot say that the outcome of the trial would have been

different without Marie Rose’s testimony. Appellant himself admitted that he sent

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threatening messages to Ruffo including messages hours before Ruffo’s death. He also

admitted having been drinking and that he was intoxicated at the time he sent those

messages. Appellant testified as to his relationship with Clevenger and stated that he did

not like that Clevenger frequently obtained heroin from Ruffo and stayed with him.

Appellant fled the scene and disposed of the knife that killed Ruffo, which appellant later

admitted was his knife. He admitted that he lied to the police about having a knife during

his altercation with Ruffo. Ruffo’s blood was on appellant’s clothing. Ruffo’s autopsy

indicated that he had four sharp injuries caused by a knife on his body, including the fatal

stab wound.

{¶74} Without consideration for Marie Rose’s testimony, appellant’s flight,

discarding the weapons, and dishonest statements severely undermine his claim of self-

defense. See Dillon, 2016-Ohio-1561, at ¶ 49 (Substantial evidence of appellant’s guilt

included “consciousness of guilt as evidenced by his immediate flight,” and his lies to the

police) and State v. Robinson, 2008-Ohio-3498, at ¶ 202 (“The law is clear that lies told

by an accused are admissible evidence of consciousness of guilt, and thus of guilt itself.”).

{¶75} Even without Marie Rose’s testimony, as our discussion in reference to the

sufficiency and manifest weight of the evidence indicated above, the State still presented

strong evidence from multiple witnesses indicating that appellant acted with purpose, and

with prior calculation and design to cause the death of Ruffo. We cannot say that the

result of the trial would have been different absent Marie Rose’s testimony.

{¶76} Accordingly, appellant’s third assignment of error is without merit.

{¶77} Appellant’s fourth assignment of error states:

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 {¶78} “[4.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

ALLOWING THE PROSECUTOR TO PLAY VIDEO AT VOIR DIRE AND BY

DESTRYOING THE IMPROPER JURY QUESTIONNAIRES FOR TRIAL FOR JURORS.”

{¶79} In his fourth assignment of error, appellant asserts that the trial court erred

by allowing the State to play a video during voir dire and for using improper jury

questionnaires. Appellant does not cite any legal authority in support of his position.

Further, appellant does not cite to any portion of the record. This constitutes a failure to

comply with App.R. 16 for which this court could summarily dismiss his assignment of

error. Nevertheless, we have conducted a review of the entire record and address this

assignment on a merit basis. See Hale, 1989 WL 85675, *1.

{¶80} R.C. 2945.27 provides that the trial court “shall examine the prospective

jurors under oath or upon affirmation as to their qualifications to serve as fair and impartial

jurors, but he shall permit reasonable examination of such jurors by the prosecuting

attorney and by the defendant or his counsel.” “‘The manner in which voir dire is to be

conducted lies within the sound discretion of the trial judge.’” State v. Thompson, 141

Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 72, quoting State v. Lorraine, 66

Ohio St.3d 414, 418, 613 N.E.2d 212 (1993). “[W]here there is a failure to object, the plain

error standard is applied.” State v. Zachery, 11th Dist. Trumbull No. 2019-T-0082, 2021-

Ohio-2176, ¶ 42, appeal not allowed, 165 Ohio St.3d 1425, 2021-Ohio-3730, 175 N.E.3d

578. The trial court is given “great latitude in deciding what questions should be asked on

voir dire.” Id, quoting Mu'Min v. Virginia, 500 U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d

493 (1991).

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 {¶81} “‘The term “abuse of discretion” is one of art, connoting judgment exercised

by a court which neither comports with reason, nor the record.’ State v. Underwood, 11th

Dist. Lake No. 2008-L-113, 2009-Ohio-208 [2009 WL 1177050], ¶ 30, citing State v.

Ferranto, 112 Ohio St. 667, 676-678 [148 N.E. 362] (1925).” State v. Raia, 11th Dist.

Portage No. 2013-P-0020, 2014-Ohio-2707, ¶ 9. Stated differently, an abuse of discretion

is “the trial court’s ‘failure to exercise sound, reasonable, and legal decision-making.’” Id.,

quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting

Black’s Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate court is reviewing a

pure issue of law, ‘the mere fact that the reviewing court would decide the issue differently

is enough to find error[.] * * * By contrast, where the issue on review has been confined

to the discretion of the trial court, the mere fact that the reviewing court would have

reached a different result is not enough, without more, to find error.’” Id., quoting Beechler

at ¶ 67.

{¶82} Appellant argues that the trial court erred when it overruled his objection

and allowed the State to play a video during voir dire and that the court erred by using

improper juror questionnaires. Appellant sought remand to supplement the record and

this matter was remanded for an evidentiary hearing.

{¶83} After the hearing, the trial court issued a judgment entry on March 7, 2022,

in which the court said that the juror questionnaire used in this case was developed by

Judge Thomas E. Harris with the input of the Ashtabula County Criminal Defense

Attorneys and the Conneaut City Law Director. Before trial, attorneys receive a copy of

the filled-out questionnaire for use during voir dire. After jury selection, the Ashtabula

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Common Pleas Court practice is to destroy the filled-out forms. The form has been in use

for 32 years.

{¶84} The judgment entry also said that a COVID-19 screening questionnaire was

used to identify prospective jurors who might be at risk of infecting other people. This form

was introduced in June 2020.

{¶85} The entry also addressed a DVD that the State played during voir dire. The

DVD was the personal property of the assistant prosecutor. The court included a copy of

the disc as part of the record on remand. The court further said that appellant’s trial

counsel did not object to “displaying the DVD to the prospective jurors.” However,

appellant filed a second request for a remand, noting that the transcript contradicts the

March 7, 2022 judgment entry and does contain objections. This court issued a judgment

entry on May 10, 2022, denying the request for remand and stating that “because there

is an inconsistency between what is stated in the entry on remand and what is written in

a transcript of proceedings, the transcript controls.”

Prosecutor’s Voir Dire Video:

{¶86} As noted above, appellant did not cite to specific portions of the transcript

in support of this assignment of error. However, after reviewing the transcript, appellant’s

trial counsel does in fact object to the prosecutor showing the video during voir dire. The

trial court overruled that objection on the basis that the video was not evidence and was

used as part of voir dire.

{¶87} The video is one minute 20 seconds and shows a small child with red

sprinkles on his face. The mother asks the child if he ate anything, and the child denies

having eaten any snacks. The mother then shows a container of red sprinkles spilled on

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the counter and the child denies having eaten the sprinkles. Finally, the mother tells the

child that he has sprinkles on his face, he feels his face and denies that there are any

sprinkles on his face. After playing this video, the prosecutor asked the prospective jurors

a series of questions relating to circumstantial evidence.

{¶88} The video was a demonstrative example of the example given in the Ohio

Jury Instructions. The OJI instruction provides:

The classic example of direct and circumstantial evidence is if a jury
must decide whether a hypothetical boy named Johnny ate a piece
of cherry pie. If a person walked into the kitchen and saw Johnny
eating the pie, that would be direct evidence that he ate the pie. If a
person walked in and saw Johnny with an empty pie plate in his
hand, cherry pie around his mouth, and a smile on his face, that
would be circumstantial evidence that he ate the pie. There are four
varieties or manners in which evidence will be introduced at trial:
testimonial evidence, real or demonstrative evidence, stipulation,
and facts as a matter of law.

Ohio Jury Instructions, Preliminary instructions: sample instruction; Section CR 205.01

(Rev. 6/7/14).

{¶89} Just as in the video the prosecutor played, the OJI example involves

circumstantial evidence of misconduct. The purpose of both the prosecutor’s

demonstrative video and the OJI example is to highlight to the jury that it may rely on

circumstantial evidence to determine guilt. After appellant’s trial counsel objected to the

use of the video, the trial court overruled the objection and explained to the jury that the

video “is not evidence. This is just what he’s using as part of his voir dire.”

{¶90} The trial court did not fail to exercise sound, reasonable, and legal decision-

making in permitting the State to use a demonstrative video during voir dire in this manner.

See Raia, 2014-Ohio-2707, ¶ 9.

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Juror Questionnaires:

{¶91} Next, appellant argues that the jury questionnaire the trial court used was

improper because the questionnaires did not explicitly name the victim and his family.

During voir dire, one of the jurors that would be impaneled stated that he knew of the

victim and his family. Further, he argues that it was error for the trial court to destroy the

questionnaires after use. Appellant did not make an objection at trial. Therefore, we

analyze this portion of his assignment of error under a plain error standard.

{¶92} As stated above, to find plain error, we must find that “but for the error, the

outcome of the trial would clearly have been otherwise.” Payne, 114 Ohio St.3d 502, at ¶

17.

{¶93} Appellant’s specific objections to the destruction of the questionnaires

relates to one particular juror who stated that he “knew of” the victim and his family. The

record demonstrates that one juror indicated that he knew of the victim, Paul Ruffo,

through a work-related connection. The juror said that he did not “hang out” with him but

“knew of him.” The court asked, “does the fact that you may have known him make it

difficult for you to be a fair and impartial juror in this case?” The juror said that it would not

impact his ability to sit on the jury. No further discussion was had on the subject and trial

counsel did not object or seek to strike the juror for cause or with a peremptory strike. The

juror’s answers to the trial court’s direct questioning indicated that this slight relationship

would not impact his ability to be an impartial juror.

{¶94} We cannot find that the trial court abused its discretion in using the jury

questionnaires. Most of the questions on the form are derived from R.C. 2945.25 and the

questionnaire had been in use for decades. The form included a section asking jurors if

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they knew the defendant, the attorneys, or any prospective witnesses. The form did not

include the name of the victim or the victim’s family. Appellant’s assertion that the form

ought to have had more information than it did is not demonstrative that the trial court

abused its discretion in using the form.

{¶95} Further, we need not decide whether it was error for the court to destroy the

questionnaires because appellant’s concerns about this juror were not included on the

questionnaire to begin with and those concerns were specifically addressed on the

record. Appellant failed to object and did not seek to strike the juror.

{¶96} Analyzing the juror’s answers and suitability to sit on the panel under a plain

error standard, we cannot find that but for the destruction of the juror questionnaires, “the

outcome of the trial would clearly have been otherwise.” See Issa, 93 Ohio St.3d at 56.

The use of these questionnaires falls within the trial court’s province to determine the

manner in which voir dire is conducted. See Thompson, 141 Ohio St.3d 254 at ¶ 72.

{¶97} Accordingly, appellant’s fourth assignment of error is without merit.

{¶98} Appellant’s third assignment of error states:

{¶99} “[5.] DID TRIAL COUNSEL RECEIVE INEFFECTIVE ASSISTANCE OF

COUNSEL.”

{¶100} Again, appellant has failed to satisfy the requirements of App.R. 16. In this

assignment of error, he fails to cite any authority and fails to cite to any portion of the

record. He merely makes the conclusory statements that “[c]ounsel did not get his own

expert to challenge DNA, counsel did not meet with client to review the case. Client did

not subpoena any witnesses for defendant including his son or anybody.”

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 {¶101} This constitutes a failure to comply with App.R. 16 for which this court could

summarily dismiss his assignment of error. Nevertheless, we have conducted a review of

the entire record and address this assignment on a merit basis. See Hale, 1989 WL

85675, *1.

Ineffective Assistance of Counsel:

{¶102} In reviewing an ineffective assistance of counsel claim, the standard we

apply is “‘whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.’”

State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An

appellant must demonstrate (1) his counsel was deficient in some aspect of his

representation, and (2) there is a reasonable probability, were it not for counsel's errors,

the result of the proceedings would have been different. Strickland at 669. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure

to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”

State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing

Strickland at 697.

{¶103} An appellant “must be able to demonstrate that the attorney made errors so

serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth

Amendment, and that he was prejudiced by the deficient performance.” Story, supra,

2007-Ohio-4959, ¶ 49, quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031,

2007-Ohio-2305, ¶ 42. Ohio courts presume that every properly licensed attorney is

competent, and therefore a defendant bears the burden of proof. State v. Smith, 17 Ohio

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St.3d 98, 100, 477 N.E.2d 1128 (1985). “Counsel’s performance will not be deemed

ineffective unless and until counsel’s performance is proved to have fallen below an

objective standard of reasonable representation and, in addition, prejudice arises from

counsel’s performance.” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).

“Debatable trial tactics generally do not constitute a deprivation of effective counsel.”

State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). “Failure to do a futile act

cannot be the basis for claims of ineffective assistance of counsel, nor could such a failure

be prejudicial.” State v. Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at

¶ 42.

{¶104} We address appellant’s very cursory assertions in turn. First, trial counsel’s

decision to rely on cross-examination rather than calling a defense DNA expert was not

ineffective. “Counsel's failure to retain an expert does not necessarily constitute deficient

performance.” State v. Mallory, 11th Dist. Trumbull No. 2020-T-0070, 2021-Ohio-1542, ¶

42, citing State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Counsel

effectively and thoroughly cross-examined Altizer. Moreover, appellant has not suggested

how or why this decision to not call an independent DNA analyst caused prejudice.

Indeed, appellant admitted that he owned the knife and other items with Ruffo’s blood on

them. Appellant argued that he acted in self-defense, which would accord with Ruffo’s

DNA being on those items.

{¶105} Second, nothing in the record supports appellant’s claim that his trial

counsel failed to meet with him to review the case.

{¶106} Finally, the decision to not subpoena witnesses is a matter of trial tactics

and we will not second guess trial counsel’s decision. State v. Kovacic, 2012-Ohio-219,

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969 N.E.2d 322, ¶ 46 (11th Dist.). Appellant has not suggested that the that the testimony

of a missing witness would have benefitted his defense or how the failure to call another

witness caused him prejudice. See State v. Beesler, 11th Dist. Ashtabula No. 2002-A-

0001, 2003-Ohio-2815, ¶ 13.

{¶107} Accordingly, appellant’s fifth assignment of error is without merit.

{¶108} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.

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