State v. Stevens

[Cite as State v. Stevens, 2023-Ohio-3280.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 21CA9
:
v. :
: DECISION AND JUDGMENT
GERALD D. STEVENS, : ENTRY
:
Defendant-Appellant. : RELEASED 9/14/2023
_____________________________________________________________
APPEARANCES:

Felice Harris, Harris Law Firm, LLC, Columbus, Ohio, for Appellant.

Dave Yost, Ohio Attorney General, Andrea Boyd, Assistant Attorney
General, Columbus, Ohio, for Appellee.
_____________________________________________________________

Smith, P. J.

{¶1} Gerald D. “Dean” Stevens appeals the entry of the Hocking

County Common Pleas Court entered October 8, 2021. On appeal, Mr.

Stevens raises four assignments of error challenging: (1) the sufficiency of

the evidence presented to convict him; (2) the alleged improper admission of

evidence; (3) an alleged violation of his constitutional rights to confrontation

of witnesses; and (4) an alleged ineffective assistance of counsel. For the

reasons which follow we find no merit to his assignments of error. The

judgment of the trial court is affirmed.
Hocking App. No. 21CA9 2

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} On December 6, 2019, Stevens was indicted on five counts as

follows:

Count One: Aggravated burglary, R.C. 2911.11(A)(1);

Count Two: Burglary, R.C. 2911.12;

Count Three: Burglary, R.C. 2911.12(A)(3);

Count Four: Grand Theft, when the Property is a Firearm
Or Dangerous Ordnance, R.C. 2913.02;

Count Five: Tampering with Evidence, R.C. 2921.12(B).

{¶3} Counts Two and Three also contain firearm specifications.

The indictment against Stevens arose from criminal activities which

occurred at the residence of Stevens’ cousin, Robbie Davis, on or about

December 26 and 27, 2013. The Davis’ residence is located at 2451 Goose

Creek Road. Robbie Davis resides with his wife Megan and their small

children. Dean Stevens and various other family members also live in this

vicinity.

{¶4} On December 10, 2019, Stevens appeared in the Hocking

County Common Pleas Court and entered not guilty pleas.1 Pretrial

1
The matter was prosecuted by a special prosecutor on behalf of the Ohio Attorney General’s Office.
Stevens retained defense counsel. The sitting Hocking County Common Pleas Court judge recused himself
and a visiting judge was assigned by the Supreme Court of Ohio.
Hocking App. No. 21CA9 3

proceedings were affected by the Covid 19 emergency. Mr. Stevens

eventually proceeded to a jury trial on June 7, 8, and 9, of 2021.

{¶5} The State’s theory of the case was that Dean Stevens sent

a “crew” of criminals, namely Brandon Allen, Shane Adkins, and Kenny

Wells, to the home of his cousin, Robbie Davis’s house for the purpose of

stealing Davis’s money and guns from a safe. Jeremy Myers, the key State’s

witness, was present when Stevens originated the plan and discussed it with

the crew of participants.

{¶6} On December 26, 2013, the burglary was interrupted and

Stevens’ crew went to Myers’ apartment to wait until they could go back and

complete the burglary. The next day, Jeremy Myers spoke with Brandon

Allen and Stevens, both of whom told him virtually the same story

describing the events which had occurred at Davis’s home on December 26

and 27, 2013.

{¶7} Jeremy Myers’ testimony began with his acknowledgment of

his criminal history which included three convictions for receiving stolen

property, breaking and entering, and theft. Myers was also charged with

burglary and theft from Robbie Davis. As part of a plea agreement to the

burglary charge, he agreed to work with investigators and testify. Two other

charges were dismissed. The State agreed to defer sentencing to the judge.
Hocking App. No. 21CA9 4

{¶8} Myers testified he met Dean Stevens in 2013 through a mutual

acquaintance, Shane Adkins. Adkins helped Myers sell stolen goods.

Myers was also a longtime associate of Brandon Allen.

{¶9} In 2013, Jeremy Myers had arrest warrants and was hiding in

Jackson County. Myers met Stevens through their mutual friend, Shane

Adkins. At first, Myers stayed with Adkins and did legitimate odd jobs for

Dean Stevens, such as chopping firewood, washing cars, and cutting grass.

Later Stevens provided Myers an apartment for 7-8 months. Myers

“bounced” between Stevens’ apartment and the Jackson area.

{¶10} Myers testified after “they” became comfortable, “they” began

devising ways to make money. Myers testified that he and others engaged in

criminal activities at the behest of Stevens. Myers testified that Timothy

Stein and he worked together as a “crew.” Brandon Allen, Shane Adkins,

and Kenny Wells worked together as another “crew.”

{¶11} Stevens provided Myers various vehicles and phones. Stevens

also purchased phones for Brandon Allen. Almost every 30-40 days

Stevens provided a new phone. Myers testified the idea behind changing

phones was “if you do three or four things with the same phone and then you

get caught on the fifth one, then that phone right there can tie you to those
Hocking App. No. 21CA9 5

three or four too. So, if you change the phones up often you might get

caught for this one, but you’re not going to get hit for the other ones.”

{¶12} Myers testified about a conversation which he overheard a few

days before Christmas 2013, in Dean Stevens’ garage. Myers overheard

Stevens concocting a plan for Brandon Allen and his crew to break into

Robbie Davis’s home:

Well, Dean finally showed up and gave me the money
about the same time that Brandon showed up. And then
he also owed Brandon some money for some other things
and that kind of started a little argument between them two
because he could pay me but he can’t pay them. And that’s
when they started discussing about he’s got something he
- - for them to do right down the street and it went from
there.

{¶13} Myers continued:

Well I was closer towards the back of the garage but I
overheard the conversation. I guess he’d been having
problems with this guy for a while. Talking about Rob.
He was going to be gone. There’s a safe in there. The
money’s in there and he had a bunch of guns and Dean
wanted the guns.

{¶14} The plan was for the crew, consisting of Brandon Allen,

Shane Adkins, and Kenny Wells, to break into Robbie Davis’s home. There

was a safe containing cash and firearms. The crew would keep the money

and Stevens would get the firearms.

{¶15} Myers further testified as to Stevens’ support and assistance of
Hocking App. No. 21CA9 6

the crew during the burglaries. After the crew had initially gone onto

Davis’s property, the crew showed up unexpectedly at Myers’ apartment.

Myers testified that he knew the burglary, although not completed, had taken

place:

[I]t was sometime late in that - - in the night, after 12:00
or 1:00, I’m not 100 per cent sure on the time, I’m in that
apartment and they come in. That’s how I know it was that
three. Before - -when the conversation went down at the
garage that day there was only two of them. But then later
that night it was the three of them that came into the
apartment, all right? The neighbors at the end of the
driveway or whatever it was, I guess, had called the law or
whatever it is. However, that happened, Dean ended up
there before they did. While Dean was there, he got the
chip from the camera and placed a key on a waterspout for
them to get back. But he blocked the driveway, or
someone blocked the driveway. And then they went back
again after everything had calmed down and cooled off
and that’s when they took the truck and all.

{¶16} Myers testified he talked to Stevens around 10:00 or 11:00 on

December 27th, and Stevens was “ranting and raving” and “pissed off” that

the crew did not bring him any guns. According to Myers, Stevens told him:

Told me that, you know, that he set them up with that and
there was supposed to be this amount of money in there,
which I don’t remember how much it was, and the only
thing he wanted out of it was the guns. And they went in
- - well, their dumb asses went in there and they got caught
so he fixed that. And then when they did it again, they
didn’t even bring him his guns.

{¶17} The prosecutor questioned as follows:
Hocking App. No. 21CA9 7

Prosecutor: And he was upset because they didn’t - -

A: He didn’t get - -

Prosecutor: - - bring him the guns that they were supposed to?

A: Yes.

Prosecutor: All right. Now you mentioned that Dean told you
that he went into the house that night. What did he
tell you about why he went over to the house that
night?

A: Because - - he said that he went in there and he got
the SD card out of the camera.

Prosecutor: Okay. And what did he say about that SD card?

A: He said he broke it.

Prosecutor: Did he tell you why he broke it?

A: That way I guess they wouldn’t get no pictures or
nothing like that.

Prosecutor: Do you remember if he told you anything about a
truck key?

A: Yeah. It was a Ford truck key. He stuck it on the
waterspout.

Prosecutor: You say, yeah, Ford truck key stuck on
waterspout. What do you mean by that?

A: When they blocked the driveway or whatever it is,
he - - when he went in there he left them a key on
the waterspout outside - -

Prosecutor: So - -
Hocking App. No. 21CA9 8

A: is what Brandon had told me. And then I had
talked to him the next day and he told me the same
thing so I know that there was a key left on the
waterspout.

Prosecutor: So, Brandon had told you this, but Dean had also
told you that that night when he was over there, he
had taken a truck key and put it outside on the
waterspout in the anticipation that these guys
would come back around?

A: Yes.

Q: And then this would help them take this truck in
order to take the safe?

A: Yes.

{¶18} Myers also reviewed State’s Exhibit 3, a photograph from a

deer camera on Davis’s property. This photograph was dark and showed a

person facing the opposite direction. The person was wearing a hoodie and

pants. The prosecutor asked how Myers could identify the person as

Brandon Allen. Myers testified “because of the body language. That’s just

the way he walks.”

{¶19} Myers’ testimony further revealed that in the summer of 2014,

Myers and Timothy Stein were picked up on probation violations and held in

Jackson County. While in the Jackson County jail, Detective Ed Downs,

Deputy Rieder, and Major Mike Musick approached Myers and questioned

him about the December 2013 burglaries at Robbie Davis’s home. The
Hocking App. No. 21CA9 9

officers asked him to wear a wire and talk to Stevens about the burglaries.

Myers and Stein were released from jail. Myers testified that State’s Exhibit

17 was his recorded conversation with Stevens in which the men discussed

the burglaries at Davis’s home. This conversation will be discussed further

under Assignment of Error One.

{¶20} On cross-examination, Myers admitted that he had been

stealing since he was a teenager. He also admitted that when the crew

showed up at his apartment after the first burglary was interrupted, he didn’t

call the authorities. Myers acknowledged that pursuant to the plea

agreement, he is not facing mandatory prison time. Stevens’ attorney also

attempted to discredit his testimony by pointing out that Myers was

interviewed two to three times with law enforcement officers but he had not

always mentioned the broken SD card.

{¶21} After the burglaries were completed, Myers testified Davis’s

truck and the safe were taken to Richland Farms where the safe was cut

open. The crew took the money and guns inside the safe. Stevens never

received any firearms.

{¶22} Robbie Davis began his testimony describing his close

relationship with his cousin, Dean Stevens. Stevens had a “big heart,” and

the Stevens family were “good people.” The cousins helped each other and
Hocking App. No. 21CA9 10

hunted together. Stevens helped Davis get his CDL and get into a trucking

business. Davis and Stevens had purchased safes in Tennessee at the same

time.

{¶23} In 2013, Robbie Davis’s family celebrated Christmas at home

and then traveled to Florida. The night after Christmas, Robbie Davis

received a phone call from his brother Darrin Davis. Darrin told him Rick

Reid had contacted him after hearing noise and dogs barking at Davis’s

house. Rick Reid drove to Davis’s house and saw one of Davis’s trucks

running with the doors wide open and a trailer attached.

{¶24} Eventually at least ten people were present in Davis’s home,

apparently alerted by the noise and dogs as was Rick Reid. The evidence

demonstrated that Tony Davis and Bernard Davis also went to Davis’s home

due to the sound of barking dogs. Darrin Davis contacted his sister Sherry

Lowery and her husband Dave Lowery, and they both showed up to assist.

Sherry Lowery testified that Frank Davis and Appellant Stevens also showed

up at Davis’s home, presumably to assist. The testimony also indicated a

couple of unnamed neighbors, possibly now deceased, also responded.

{¶25} After Davis was alerted about the disturbance, he called his

house while the aforementioned Stevens, Rick Reid, Darrin Davis, Frank

and Patty Davis, Eric Smith, Sherry and Dave Lowery, Tony Davis and a
Hocking App. No. 21CA9 11

neighbor were present. Davis testified he had a deer/trail camera in his

driveway and a surveillance camera in the master bedroom. Davis told

Sherry Lowery to find the surveillance camera and to check the surveillance

video.

{¶26} Davis testified he was on speakerphone and everyone could

hear each other. Davis was having the others check the house to see if

things were stolen. He told them to see if his pistol was in the sock drawer

in his bedroom. All of his other firearms were in a safe except for a pistol he

had with him on vacation.

{¶27} Davis testified he installed the surveillance camera a few days

before his trip. Most of his family members knew about it, including

Stevens, as they were talking on the phone while Davis installed the camera.

Stevens had mentioned he would like to see the camera. The camera’s

recording device was hidden under the clothes in Davis’s bedroom. When

the surveillance video was found, it would not play. Tony Davis inserted the

SD card from the surveillance camera in his laptop. Stevens attempted to

play the SD card on his phone. Neither were successful.

{¶28} Davis reported the situation to the Hocking County Sheriff’s

Office after everyone had walked through the house. Davis’s family talked

about staying at his house, but an officer advised against this. After the first
Hocking App. No. 21CA9 12

attempted burglary, Davis’s brother parked a log truck sideways to block the

driveway.

{¶29} Davis testified the next morning his brother called and said the

intruders came back and stole his safe. Davis identified a photograph of his

safe.2 He kept 41 firearms in it. Davis’s white Ford truck was stolen. Some

of the personal items were later found in the creek. He later recovered four

of his guns.

{¶30} Davis testified he did not know Brandon Allen or Jeremy

Myers. He had seen Jeremy Myers once at Stevens’ car lot before the

robbery. Davis’s deer camera picked up an image of two individuals

walking toward his house. Davis’s wife and young children were scared for

months after the burglaries.

{¶31} On cross-examination, Davis testified that it didn’t make sense

that Stevens would want to steal from him. He “would not have believed it

in a million years.” Davis testified he was uncomfortable testifying. Even at

trial, he still didn’t believe that Stevens had a reason to steal from him.

{¶32} Lieutenant Brian McManaway of the Hocking County Sheriff’s

Office testified he responded, along with Deputy Brock Bowman, to a

2
Davis testified he kept baby books, SD cards, collector items, Dale Earnhardt items, gold coins, some
cash, and firearms in the safe. Davis had a collection of 1100 Remington shotguns, high-powered rifles,
870 Wingmasters, a .22 pistol, a Ruger. His wife’s jewelry box containing rings, bracelets, gold and silver
necklaces, and wedding ring was also stolen.
Hocking App. No. 21CA9 13

possible burglary at the Davis residence on December 27, 2013. Deputy

Bowman took a report, which was State’s Exhibit 23. Lt. McManaway

testified that according to the report, dogs were barking about 8:45 p.m. on

December 26. Tony Davis and Bernard Davis went to check on Davis’s

house, and one of Davis’s vehicles, a truck, was backed up to a trailer. Lt.

McManaway identified State’s Exhibit Two, a five-page composite exhibit,

showing the area of Davis’s home and the homes of the other relatives living

nearby.

{¶33} Lt. McManaway further testified that there was a surveillance

camera inside the house and a trail camera outside. A broken SD card from

the surveillance camera was collected as evidence. On cross-examination,

Lt. McManaway admitted he did not collect the SD card and had to rely on

the police report as to the card’s actual existence. He admitted he did not

take pictures or collect evidence in the matter.

{¶34} Sherry Lowry testified Robbie Davis is her older brother and

Stevens is her cousin. She admitted she was uncomfortable testifying in the

case because she loved both of them. On December 26, 2013 around 10:00

p.m., she was at her home, approximately six miles away, when she received

a call from her brother Darrin Davis, that Robbie’s house had been broken

into. Someone said the security alarm had been activated.
Hocking App. No. 21CA9 14

{¶35} Sherry and her husband David took a pistol and went to Davis’s

house to investigate the situation. Davis’s white truck was running with the

door open. Sherry, David, and a neighbor walked around the house

checking doors. Then they left and went to her father’s house nearby to see

if he had been burglarized. Stevens followed them some distance but when

they went inside her father’s house, Stevens indicated he was going to check

in the fields. She did not know where Stevens was during this time.

{¶36} After determining Sherry’s father’s house was unharmed, they

went back to Robbie Davis’s house. Sherry checked to see if anything was

missing. Sherry talked with Robbie Davis over the phone. Before Robbie

left on vacation, he had installed a surveillance camera in his bedroom.

Megan Davis had covered the camera underneath a stack of clothing.

Eventually Sherry found the camera.

{¶37} Sherry tried to play the camera but was afraid she would erase

footage. Her husband David removed the SD card. Tony Davis had a laptop

and tried to play the SD card on it. When that failed Tony Davis laid the SD

card on the kitchen table. Sherry testified Stevens picked up the card and

tried to play it on his phone. The next time she saw the SD card on the

kitchen table, it was broken.

{¶38} Sherry also testified that when they arrived at her brother’s
Hocking App. No. 21CA9 15

residence, she took keys out of the cars so they could not be stolen. She

placed the keys in a bowl on a Lazy Susan in the kitchen cabinet and out of

sight. She testified Stevens and others were there when she placed the keys

out of sight.

{¶39} Sherry testified Robbie asked Stevens to check on a pistol in a

sock drawer. Stevens confirmed it was in the drawer. To her recollection,

the surveillance camera was working and was not pointing upward when she

left. When Sherry returned to the house the next day, the security camera

was turned upward pointing to the ceiling.

{¶40} Sherry testified Frank Davis, Tony Davis, and her husband

discussed staying overnight at Davis’s house to watch over his property. A

deputy, however, discouraged them from staying.

{¶41} On cross-examination, Sherry acknowledged that other

relatives and neighbors had been to the house that night. She agreed as

many as ten people, including Stevens, were present when she placed the

keys out of sight and when they tried to play the SD card.

{¶42} David Lowry testified Robbie Davis is his brother-in-

law. While Sherry specified that her husband and she received a phone call

about the disturbance at Davis’s home from her other brother Darrin at

10:00 p.m. on December 26th, David could not specify the time.
Hocking App. No. 21CA9 16

Nevertheless, he also testified that upon receiving the phone call, they left

quickly and upon arrival found a black Dodge truck hooked up to a trailer,

engine running, in the driveway. David, Sherry, and a neighbor checked the

doors in the house and outer buildings. According to David, “nothing much

seemed out of place.”

{¶43} While there, Frank Davis, Ricky Reid, two neighbors

possibly now deceased, another male across the road, and Dean Stevens also

showed up to assist. David went down to check his father-in-law’s residence

and Stevens went part of the way. However, when Stevens decided to check

the fields below Davis’s house, he went alone.

{¶44} When David returned to Davis’s house and went inside,

he noticed things moved and windows unlocked. Sherry placed the car keys

out of sight. Sherry found the surveillance camera under a stack of clothes.

The surveillance camera was recording. Stevens checked the sock drawer

and found the gun secure. David believed Stevens was there to assist, not to

steal. Both parties pointed out that Davis and Stevens were relatives and

good friends. Both Sherry and David Lowery, testified they were

uncomfortable appearing at trial and did not want to believe that Stevens

played any part in the crimes.

{¶45} David testified Frank Davis, Tony Davis, and he considered
Hocking App. No. 21CA9 17

staying around awhile to protect the place, but law enforcement officers

advised them no one would likely be back. Stevens had left while the group

was deciding whether or not to stay. The next day David learned the house

had been burglarized again. This time, he noticed the gun safe was gone, the

floor was scratched, and the house was “ransacked.”

{¶46} Deputy Brock Bowman testified that on December 27, 2013,

the sheriff’s office received a call shortly after midnight of an attempted

burglary at Robbie Davis’s residence. Bowman went to the scene with Lt.

McManaway. Family members advised that they were unsure anything was

taken but it was believed someone had gained entrance due to the

positioning of the truck in the driveway. They collected a broken SD card

and a photograph from the deer camera. Deputy Bowman took various

photographs at the Davis residence and authenticated them during his

testimony and identified State’s Exhibit 3, the photograph from the deer

camera.

{¶47} Dep. Bowman testified they received a second call around 9:00

a.m. on the 27th. This time family members indicated items were missing.

Deputy Bowman responded with another deputy. Family members advised

that a side window to the residence was open, the gun safe was gone, and

Robbie Davis’s Ford truck was gone. A photograph demonstrating the
Hocking App. No. 21CA9 18

surveillance camera pointing upward led Bowman to believe it had been

tampered with. Exhibit Five depicted the safe.

{¶48} Deputy Bowman also did a walk-through video showing the

inside of Davis’s house, Exhibit 15, which was played for the jury. Davis’s

stolen truck was recovered in Jackson County. Exhibit 7 depicted the truck.

{¶49} Deputy Bowman also testified he subpoenaed the phone

records of Dean Stevens, Brandon Allen, Jeremy Myers, and Timothy Stein

during the investigation of the Davis burglaries. Deputy Bowman identified

State’s Exhibit 18, a call detail record (CDR) for the period of time between

December 26, 2013 and December 27, 2013. The CDR will be discussed in

greater detail under Assignment of Error Two. On cross-examination,

Deputy Bowman clarified that the CDR reflected only that the phone

numbers were registered to the various individuals. He admitted that he

could not say who was using the phones during each call.

{¶50} Deputy Bowman also identified State’s Exhibit 14, a plea

agreement between the State of Ohio and Brandon Allen. The agreement

reflects that Allen pled guilty to burglary and attempted theft relating to the

activities at Robbie Davis’s house on December 26 and 27, 2013.

{¶51} At the close of trial, the State offered its exhibits, 1-18, and 23,

(excluding 4, 11, and 15), without objection. These included:
Hocking App. No. 21CA9 19

1. Photos of house

2. Photos of property

3. Photo from deer cam

4. Excluded

5. Photos of safe

6. Photos of jewelry box and list of missing items

7. 21 photos of truck

8. Excluded

9. Photo of DVR monitor

10. Jeremy Myers’ plea agreement

11. Excluded

12. Myers’ defendant agreement3

13. ODNR license of Brandon Allen

14. Brandon Allen plea agreement

15. Excluded

16. Walk through video of Davis property

17. Audio recording between Myers and Stevens

18. Phone record data- CDR

3
Exhibit 12, Myers’ defendant agreement, is a three-page document which references the plea agreement.
In the defendant’s agreement, Myers promised to testify truthfully, completely, and accurately.
Hocking App. No. 21CA9 20

***

23. Incident Report

{¶52} After the State rested, defense counsel made a Crim.R. 29

motion which was denied. The defense offered one exhibit, Jeremy Myers’

indictment, and then rested without offering further evidence. In closing

argument, the State argued that Stevens’ guilt by complicity to the crew’s

criminal activities was established through Jeremy Myers’ testimony. In

closing, Stevens’ attorney characterized Myers’ testimony as an unreliable

“tall tale.” The jury was instructed as follows:

The defendant may be convicted as a principal offender or
as a complicit [sic], or as to any other or all counts and
specifications in the indictment. A person who is
complicit with another in the commission of a criminal
offense is regarded as guilty as if he personally performed
every act constituting the offense. This is true even if he
did not personally perform every act constituting the
offense or was not physically present at the time the
offense was committed. Before you can find the defendant
guilty of complicity by aiding and abetting, you must find
beyond a reasonable doubt that the defendant supported,
assisted, encouraged, cooperated with, advised or incited
the principal offender in the commission of the offense,
and that the defendant shared the criminal intent of the
principal offender. Such intent may be inferred from the
circumstances surrounding the offense, including, but not
limited to, presence, companionship and conduct before
and after the offense was committed. The mere presence
of the defendant at the scene of the offense is not sufficient
to prove in and of itself that the defendant was an aider and
abettor.
Hocking App. No. 21CA9 21

{¶53} On June 10, 2021, Stevens was convicted of Counts Two,

Three, and Four along with the specifications as to Counts Two and Three.

On August 16, 2021, the trial court journalized its Judgment Entry of

Sentence and imposed an aggregate prison term of six years and six months.

On October 8, 2021, the trial court filed a Nunc Pro Tunc Judgment Entry of

Sentence.4 Mr. Stevens has timely appealed his convictions.

ASSIGNMENTS OF ERROR

I. THE STATE FAILED TO PRODUCE
SUFFICIENT EVIDENCE TO SUSTAIN ITS
CONVICTIONS IN VIOLATION OF DEAN
STEVENS’ RIGHT TO DUE PROCESS OF LAW
GUARANTEED BY ARTICLE I, SECTION 10
OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION.

II. THE TRIAL COURT ERRED AND VIOLATED
DEAN STEVENS’ CONSTITUTIONAL RIGHT
TO CONFRONT THE WITNESSES AGAINST
HIM BY IMPROPERLY ADMITTING
EVIDENCE IN VIOLATION OF THE
CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND OHIO EVID.R. 803(6).

III. DEAN STEVENS WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL
GUARANTEED BY THE UNITED STATES
AND OHIO CONSTITUTIONS.

4
The Nunc Pro Tunc Judgment Entry of Sentence appears to have been filed in order to correct the
misidentification of Count 4 as Count 3 on the first and second pages of the first Judgment Entry of
Sentence.
Hocking App. No. 21CA9 22

IV. THE TRIAL COURT ERRED AND VIOLATED
DEAN STEVENS’ CONSTITUTIONAL RIGHTS
TO DUE PROCESS OF LAW AND A FAIR
TRIAL BY IMPROPERLY ADMITTING
EVIDENCE IN VIOLATION OF OHIO EVID. R.
401, 403, AND 404.

ASSIGNMENT OF ERROR ONE - SUFFICIENCY OF THE
EVIDENCE

{¶54} Stevens makes three arguments. First, he contends that the

evidence was insufficient to establish that he unlawfully trespassed into an

occupied structure, proof of which was required to support a conviction on

Count Three, Burglary. Next, Stevens argues that the evidence was

insufficient to establish that he had a firearm on or about his person or under

his control as alleged in the Specification to Count Three. Finally, Stevens

also contends the evidence was not sufficient to establish that he trespassed

into an occupied structure when another person was present or likely to be

present as alleged in Count Two, Burglary.

A. STANDARD OF REVIEW

{¶55} A claim of insufficient evidence invokes a due process concern

and raises the question whether the evidence is legally sufficient to support

the verdict as a matter of law. See State v. Blevins, 2019-Ohio-2744, 140

N.E.3d 27, at ¶18 (4th Dist.); State v. Thompkins, 78 Ohio St.3d 380, 386,

678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence, an
Hocking App. No. 21CA9 23

appellate court's inquiry focuses primarily upon the adequacy of the

evidence; that is, whether the evidence, if believed, reasonably could support

a finding of guilt beyond a reasonable doubt. Thompkins, syllabus. The

standard of review is whether, after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential

elements of the offense beyond a reasonable doubt. See, e.g., Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio

St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is

not to assess “whether the state's evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.”

Thompkins at 390, 678 N.E.2d 541.

{¶56} Thus, when reviewing a sufficiency of the evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. See, e.g., State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d

1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993).

A reviewing court will not overturn a conviction on a sufficiency of the

evidence claim unless reasonable minds could not reach the conclusion that

the trier of fact did. See State v. Tibbetts, 92 Ohio St.3d 146, 162, 749

N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749
Hocking App. No. 21CA9 24

(2001). Here, after our review of the record, we believe the State presented

evidence that, if believed, could support a finding of guilty of burglary, as a

complicitor, beyond a reasonable doubt.

B. LEGAL ANALYSIS

a. Count Three, Burglary

{¶57} Stevens was convicted of Burglary, R.C. 2911.12(A)(3), which

provides in pertinent part: “No person, by force, stealth, or deception, shall

do any of the following: Trespass in an occupied structure * * * with

purpose to commit in the structure * * * any criminal offense.” Importantly,

Stevens was convicted as complicit to the criminal activities at Davis’s

house which took place on separate occasions during the late hours of

December 26, 2013 to the early morning hours of December 27, 2013. This

count was alleged to have occurred during the first occasion when the

principal offenders, Stevens’ crew, went to Davis’s home and were

disrupted. Stevens argues that the evidence is not sufficient to establish that

the crew trespassed into Davis’s home on the first occasion of the evening.

{¶58} We disagree. David Lowery testified that when he and his

wife arrived, they first checked the doors and the outer buildings. While he

testified the doors were locked, he added, “Nothing much seemed out of

place.” The Lowerys went to check on Sherry’s father’s home. When they
Hocking App. No. 21CA9 25

returned, David testified that, “some things had been moved around, found

some windows unlocked.” During the State’s case, the prosecutor

questioned Jeremy Myers, “What do you learn when they come to your

house?” Myers replied, “I learned that they went over there and that they

broke in there and then they got ran off.”

{¶59} In reviewing sufficiency of the evidence claims, courts must

remain mindful that the elements of an offense may be established by direct

evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d

86, 568 N.E.2d 674 (1991); State v. King, 4th Dist. Meigs No. 21CA2, 2022-

Ohio-4616, at ¶ 24. Circumstantial and direct evidence are of equal

evidentiary value. See State v. Jenks, 61 Ohio St.3d at 272 (“Circumstantial

evidence and direct evidence inherently possess the same probative value

[and] in some instances certain facts can only be established by

circumstantial evidence.”). When reviewing the value of circumstantial

evidence, “the weight accorded an inference is fact-dependent and can be

disregarded as speculative only if reasonable minds can come to the

conclusion that the inference is not supported by the evidence.” Wesley v.

The McAlpin Co. (May 25, 1994) Hamilton App. No. C-930286.

{¶60} From the above testimony, the jury likely inferred that a few
Hocking App. No. 21CA9 26

things outside the home were out of place. Moreover, the jury found

credible David Lowery’s testimony that things inside the house were moved

around and inferred that an entry was made into the Davis home. This is

corroborated by Myers’ testimony that the crew told him they broke in. The

trial court instructed the jury that they were the sole judges of the credibility

of the witnesses and further instructed they were free to believe all or any

part of the testimony of any witness. The jury also apparently found Myers’

testimony credible, as well as David Lowery, on this point.

{¶61} Based on the foregoing, we believe the evidence supports a

finding beyond a reasonable doubt that the crew entered Davis’s home on

the first occasion of their presence on his property. Stevens was found to be

complicit as he supported and encouraged their criminal conduct. Thus, we

find no merit to this argument.

b. Count Three, Firearm Specification

{¶62} Stevens was also convicted of a firearm specification in Count

Three, R.C. 2941.141(A), which “specifies that the offender had a firearm

on or about the offender's person or under the offender's control while

committing the offense.” Stevens contends there is not sufficient evidence

to convict him of this specification because there is no evidence that Shane

Adkins, Brandon Allen, or Kenn Wells had a firearm on or about their
Hocking App. No. 21CA9 27

person while committing burglary. The State of Ohio points to the evidence

of the crew’s entry into the home and exerted control over the premises and

the gun safe until they were thwarted. The State also directs us to State v.

Powell, 59 Ohio St.3d 62, 571 N.E.2d 125 (1991), wherein the Supreme

Court held that:

(1) defendants could be given additional three-year term
of incarceration for possession of firearm during
commission of aggravated burglary where firearm
was acquired by theft during burglary; (2) firearm did
not have to be used during the offense so long as it was
in defendant's possession or control at some point
during commission of crime; and (3) firearm
specification could be imposed on the basis of
possession of firearm by any accomplice involved in
offense.

{¶63} Citing the legislative intent of R.C. 2929.71, the Powell

Court observed:

[T]he General Assembly sought to deter and punish
both the use and possession of firearms by people who
commit crimes. The public policy behind this
enactment is apparent: a criminal with a gun is both
more dangerous and harder to apprehend than one
without a gun. Further, it is obvious that a gun stolen
during a burglary can be as dangerous as one which the
burglar has at the start of the crime.

{¶64} The Second District Court of Appeals applied this reasoning

more recently in State v. Davis, 2d Dist. Clark No. 2019CA67, 2020-Ohio-
Hocking App. No. 21CA9 28

3109, at ¶ 38, in a case involving the same statute as with Stevens is

charged.5

{¶65} Furthermore, “the Ohio Supreme Court has held that

[an accused] is subject to a sentencing enhancement on a firearm

specification regardless of whether he was the principal or an unarmed

accomplice.” State v. King, 12th Dist. Butler No. CA2021-09-116, 2022-

Ohio-3178, at ¶ 24; State v. Humphries, 8th Dist. Cuyahoga No. 99924,

2014-Ohio-1230, ¶ 18, citing State v. Chapman, 21 Ohio St.3d 41, 42, 487

N.E.2d 566 (1986), (upholding unarmed accomplice's conviction for

aggravated robbery with a firearm specification). “In such a case, the

actions of the principal are imputed to the accomplice, and the accomplice

‘may be found to have committed every element of the offense committed

by the principal, including possession of the weapon.’ ” State v. Frost, 164

Ohio App.3d 61, 2005-Ohio-5510, ¶ 20, 841 N.E.2d 336 (2d Dist.), quoting

State v. Letts, 2d Dist. Montgomery No. 15681, 2001 WL 699537, *3, 2001

Ohio App. LEXIS 2749, *9 (June 22, 2001). See also State v. Johnson., 4th

Dist. Scioto No. 95CA2327, 1996 WL 243394, (May 9, 1996), at ¶ Fn 3.

5
See also State v. Williams, 4th Dist. Highland No. 97CA298, 1998 WL 290240, at *2, (It was not
necessary for defendant to have a deadly weapon in his possession at the time he entered the
victim’s home so long as he obtained such a weapon while in the process of perpetrating the
burglary).
Hocking App. No. 21CA9 29

{¶66} Stevens was convicted as complicit to burglary in Count

Three. As an accomplice rather than as the principal offender, the State need

not prove that Stevens actually possessed a firearm to satisfy R.C. 2941.141.

Rather, constructive possession is sufficient. Robbie Davis testified he kept

a loaded pistol in his sock drawer. He testified his safe contained over 40

various firearms: shotguns, high-powered rifles, pistols. The pistol was

loaded and Davis testified that several of the firearms in his safe worked.

When breaking into Davis’s house, the crew that Stevens aided and abetted

had control of Davis’s premises, the bedroom where the pistol was located,

and the safe. These firearms were under the crew’s control during the

commission of the burglary.6

{¶67} We find no merit to Stevens’ argument that there was not

sufficient evidence to support his conviction on the Specification to Count

Three.

c. Count Two, Burglary

{¶68} Stevens was also convicted of R.C. 2911.12(A)(2), which

6
See State v. Moore, 7th Dist. Mahoning No. 12 MA 8, 990 N.E.2d 625, 2013-Ohio-1435, ¶ 65
(“a firearm specification was and still is an enhancement to a predicate offense, and the complicity
statute provides that the person complicit in the offense can be prosecuted ‘and punished’ as if he
were the principal”).
Hocking App. No. 21CA9 30

provides that “[n]o person, by force, stealth, or deception, shall * * *

[t]respass in an occupied structure * * * that is a permanent or temporary

habitation of any person when any person other than an accomplice of the

offender is present or likely to be present, with purpose to commit in the

habitation any criminal offense.” Stevens contends that there was not

sufficient evidence to establish the element that “any person other than an

accomplice of the offender is present or likely to be present.” Stevens

argues the third burglary occurred in the early morning hours while the

Davis family was still in Florida and after the neighbors and law

enforcement had left.

{¶69} The State of Ohio points to the evidence in the record that, to

Stevens’ knowledge, others planned on staying after the first disruption at

the property. David Lowery and Sherry Lowery both testified that Tony

Davis, Frank Davis and David had considered staying at Robbie Davis’s

house to protect it after the first burglary. Both Lowerys testified Stevens

was gone, however, before the group made the ultimate decision not to stay.

Again, the credibility of the witnesses at trial is always the province of the

trier of fact, in this case, the jury.

{¶70} While there is not a great deal of testimony on this point, there
Hocking App. No. 21CA9 31

is enough that, if believed, and construing the evidence in a light most

favorable to the State, a rational trier of fact could have found that Stevens’

burglary crew trespassed into the Davis home when another person was

likely to be present. Moreover, Stevens encouraged and supported them in

doing so, knowing the residence was likely to be occupied by persons

looking out for Robbie Davis’s interests.

{¶71} We find no merit to Stevens’ argument that the evidence was

not sufficient to establish that he trespassed into an occupied structure when

another person was present or likely to be present, when he was convicted as

a complicitor, as alleged in Count Two.

{¶72} We realize that Stevens’ convictions rest largely on

circumstantial evidence and the jury’s evaluation of Jeremy Myers’

credibility. However, “ ‘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. King, 4th Dist.

Meigs No. 21CA2, 2022-Ohio-4616, at ¶ 23, quoting 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, 968 N.E.2d 27, ¶

25 (1st Dist.); State v. Bennett, 2019-Ohio-4937, 149 N.E.3d 1045, ¶ 46 (3d
Hocking App. No. 21CA9 32

Dist.). The jury obviously found Jeremy Myers, despite his own criminal

background, a convincing witness.

{¶73} Based on the foregoing, we find no merit to Stevens’ first

assignment of error. It is hereby overruled.

ASSIGNMENT OF ERROR TWO - CONFRONTATION CLAUSE

{¶74} Under the second assignment of error, Stevens asserts that his

constitutional right to confront evidence against him was violated when the

trial court allowed a Call Detail Record (CDR), State’s Exhibit 18, to be

introduced into evidence during the testimony of Deputy Brock Bowman.

Stevens contends that the record was not a business record but instead,

constituted a testimonial record prepared for the purpose of litigation.

State’s Exhibit 18 was admitted into evidence without objection.

A. STANDARD OF REVIEW

{¶75} The admission of evidence is within the sound discretion

of the trial court. State v. Jackson, 4th Dist. Washington No. 12CA16, 2013-

Ohio-2628, at ¶ 16; State v. Dixon, 4th Dist. Scioto No. 09CA3312, 2010-

Ohio-5032, at ¶ 33, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987), at paragraph two of the syllabus. Evid. R. 103(A) follows the

longstanding rule that the failure to make a specific objection to the

admission of evidence waives the objection and it cannot thereafter form the
Hocking App. No. 21CA9 33

basis of a claim in an appellate court. State v. Schroeder, 2019-Ohio-4136,

147 N.E.3d 1, at ¶ 39 (4th Dist.); Kent v. State, 42 Ohio St. 426, 430–431,

1884 WL 256. Crim.R. 52(B), however, provides a mechanism by which

defendants may obtain review of “plain errors” that affected “substantial

rights” even where they failed to object. Generally, appellate courts take

notice of plain error under Crim.R. 52(B) with the utmost caution, only

under exceptional circumstances and only to prevent a manifest miscarriage

of justice. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889

N.E.2d 995, ¶ 78; State v. Patterson, 4th Dist. Washington No. 05CA16,

2006-Ohio-1902, at ¶ 13; State v. McCluskey, 4th Dist. Ross No. 17CA3604,

2018-Ohio-4859, at ¶ 11. Plain error should be noticed if the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.

State v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139, at ¶ 66 (4th Dist.).

{¶76} In contrast to rulings under the Ohio Rules of Evidence, trial

court rulings that implicate the Confrontation Clause are reviewed de novo.

State v. Lawson, 2020-Ohio-3008, 154 N.E.3d 658, at ¶ 22 (10th Dist.),

citing State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d

508, ¶ 97, citing State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126

(1967), and United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).

But even in cases where the defendant has established a violation of rights
Hocking App. No. 21CA9 34

under the Confrontation Clause, the Supreme Court of Ohio has consistently

applied a harmless-error analysis to determine whether the issue prejudiced

the defendant. See McKelton at ¶ 192, quoting Harrington v. California,

395 U.S. 250, 254, 89 S.Ct. 1726 (1969), citing Schneble v. Florida, 405

U.S. 427, 432, 92 S.Ct. 1056 (1972) (where “ ‘there is [no] reasonable

possibility that the improperly admitted evidence contributed to the

conviction,’ * * * alleged confrontation error was harmless beyond a

reasonable doubt”).

B. LEGAL ANALYSIS

{¶77} “The Confrontation Clause to the Sixth Amendment of the

United States Constitution, made applicable to the states by the Fourteenth

Amendment, provides that ‘ “[i]n all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the witnesses against him

* * *.” ’ ” State v. Thomas, 3d Dist. Marion No. 9-19-73, 2020-Ohio-5379,

¶ 17, quoting Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354

(2004), quoting the Confrontation Clause. The similar provisions of Article

I, Section 10 of the Ohio Constitution “provide[ ] no greater right of

confrontation than the Sixth Amendment * * *.” State v. Self, 56 Ohio St.3d

73, 79, 564 N.E.2d 446 (1990).

{¶78} “Only testimonial hearsay implicates the Confrontation
Hocking App. No. 21CA9 35

Clause.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 185, 70

N.E.3d 508. “ ‘[T]estimonial statements are those made for “a primary

purpose of creating an out-of-court substitute for trial testimony.” ’ ” Id.

quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 40, 9

N.E.3d 930, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143

(2011). Statements qualify as testimonial if they have a “primary purpose”

of “establish[ing] or prov[ing] past events potentially relevant to later

criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct.

2266 (2006). The Confrontation Clause prohibits admission of testimonial

hearsay statements made by a witness who does not appear at trial “unless

the witness is unavailable and the defendant has had a prior opportunity to

cross-examine the witness.” Maxwell at ¶ 34, citing Crawford at 53-54, 124

S.Ct. 1354.

{¶79} Business records are typically considered to be nontestimonial

because “ ‘they are prepared in the ordinary course of regularly conducted

business and are “by their nature” not prepared for litigation.’ ” State v.

Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, ¶ 82, 853 N.E.2d 621, quoting

People v. Durio, 7 Misc.3d 729, 734, 794 N.Y.S.2d 863 (2005). Business

records are “generally admissible absent confrontation not because they

qualify under an exception to the hearsay rules, but because—having been
Hocking App. No. 21CA9 36

created for the administration of an entity's affairs and not for the purpose of

establishing or proving some fact at trial—they are not testimonial.”

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527 (2009).

Cell phone records usually qualify as business records because “[e]ven when

cell phone companies, in response to a subpoena, prepare types of records

that are not normally prepared for their customers, those records still contain

information that cell phone companies keep in the ordinary course of their

business.” State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 36, 984

N.E.2d 1057. Accordingly, the Confrontation Clause does not normally

affect the admissibility of cell phone records. Id. at ¶ 39.

{¶80} Nevertheless, unless it is established that a cell phone record

is in fact a business record, the Confrontation Clause can operate to bar

admission of the record. Evid.R. 803(6) governs the admissibility of

business records. “To qualify for admission under Rule 803(6), a business

record must manifest four essential elements: (i) the record must be one

regularly recorded in a regularly conducted activity; (ii) it must have been

entered by a person with knowledge of the act, event or condition; (iii) it

must have been recorded at or near the time of the transaction; and (iv) a

foundation must be laid by the ‘custodian’ of the record or by some ‘other

qualified witness.’ ” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,
Hocking App. No. 21CA9 37

¶ 171, 880 N.E.2d 31, quoting Weissenberger, Ohio Evidence Treatise 600,

Section 803.73 (2007). Evid.R. 803(6)’s foundational requirement is

especially critical in this context. Without a certification or affidavit

authenticating cell phone records as business records or testimony from a

“custodian or other qualified witness” identifying the cell phone records as

authentic business records, it cannot be determined whether the cell phone

records are nontestimonial. Under such circumstances, admission of the cell

phone record is constitutional error. Id. at ¶ 42.

{¶81} In this case, Deputy Bowman testified that phone records of

Dean Stevens, Brandon Allen, Jeremy Myers, and Timothy Stein were

subpoenaed for the investigation into the robberies which occurred at Rob

Davis’s home. Deputy Bowman identified State’s Exhibit 18, the CDR.

The data obtained and listed on the CDR was from a cell phone registered to

Dean Stevens. He was listed as the target name. The CDR showed a begin

date of December 26, 2013 at 10:07 7 until December 27, 2013 at 8:41 p.m.

Deputy Bowman testified the CDR represented all the ingoing and outgoing

phone calls and text messages occurring during the limited timeframe on

December 26-27. Deputy Bowman did not create the CDR.

{¶82} Bowman further identified State’s Exhibit 13, a certifying

7
There is no testimony as to whether this was a.m. or p.m.
Hocking App. No. 21CA9 38

letter from the Ohio Department of Natural Resources listing Brandon

Allen’s personal phone number on his wildlife license as of May 2011.

Based on the information contained in State’s Exhibits 13 and 18, Bowman

testified that during the pertinent time period, Stevens called Brandon Allen

three times and Allen called Stevens one time.

{¶83} It was incumbent on the State to authenticate the CDR as a

business record under Evid.R. 803(6). Although Bowman testified he

obtained the CDR information by subpoenaing the cell phone records of

Stevens and Brandon Allen, he was not a custodian of the cell phone records

or an “other qualified witness” as that term is used in Evid.R. 803(6). See

State v. Sutton 3d Dist. Seneca No. 13-21-11, 2022-Ohio-2452, at ¶ 46.

Furthermore, the trial record contains no certification or affidavit

authenticating the CDR as a business record, and no representatives from

Stevens’ or Allen’s cellular service providers were subpoenaed to testify at

trial. Thus, the State failed to authenticate the cell phone records as business

records, making it impossible to determine whether the records are

nontestimonial. Because it is not possible to determine whether the cell

phone records are nontestimonial, the trial court erred by admitting the

evidence derived from those records.

{¶84} At trial, Stevens did not object to Deputy Bowman’s
Hocking App. No. 21CA9 39

testimony or to the admission of State’s Exhibit 18, the CDR, for lack of

proper authentication. As a result, our review is limited to whether the trial

court committed plain error by admitting the CDR into evidence. For plain

error to apply, the trial court must have deviated from a legal rule (the “error

prong”), the error must have been plain, i.e., an obvious defect in the

proceeding (the “plainness prong”), and the error must have affected the

defendant's “substantial rights” (the “substantial-rights prong”). State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶85} The trial court's admission of Deputy Bowman’s testimony

and State's Exhibits 13 and 18 clearly satisfies the first two prongs of the

plain-error test—the trial court committed constitutional error by admitting

the unauthenticated cell phone records and the error is “obvious on the

record, palpable, and fundamental such that it should have been apparent to

the trial court without objection.” State v. Gullick, 10th Dist. Franklin No.

13AP-26, 2013-Ohio-3342, ¶ 3.

{¶86} The relevant question thus becomes whether the trial court's

error affected Stevens’ substantial rights. The Supreme Court of Ohio has

interpreted the substantial-rights prong of the plain-error test “to mean that

the trial court's error must have affected the outcome of the trial.” Barnes at

27, 759 N.E.2d 1240. For decades, the court consistently described this
Hocking App. No. 21CA9 40

standard in terms of outcome determination—i.e., that “but for the error, the

outcome of the trial clearly would have been otherwise.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus; see

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 16, 19 N.E.3d

900; State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001); State v.

Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990). But in 2015, in

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the

court appeared to embrace a more relaxed standard. In Rogers, the court

explained that in order to show that the trial court's error affected the

outcome of the trial, the accused is “required to demonstrate a reasonable

probability that the error resulted in prejudice—the same deferential

standard for reviewing ineffective assistance of counsel claims.” (Emphasis

sic.) Id. at ¶ 22. Two years after Rogers, in State v. Thomas, 152 Ohio St.3d

15, 2017-Ohio-8011, 92 N.E.3d 821, a plurality of the court indicated that

Rogers had “clarified” the substantial-rights prong of the plain-error test. Id.

at ¶ 33.

{¶87} Recently, in State v. West, 168 Ohio St.3d 605, 2022-Ohio-

1556, 200 N.E.3d 1048, a three-justice plurality of the court held to the

position that Rogers “ ‘rejected the notion that there is any category of

forfeited error that is not subject to the plain error rule's requirement of
Hocking App. No. 21CA9 41

prejudicial effect on the outcome.’ ” Id. at ¶ 2, quoting Rogers at ¶ 24. In

doing so, the plurality used both outcome-determinative and reasonable-

probability standards in describing the substantial-rights prong, at times

using language related to both standards in the same sentence. Id. at ¶ 22,

29, 35-36. For instance, the three-justice plurality noted that the defendant

bore “the burden to establish a reasonable probability that but for the judge's

actions, he would not have been found guilty of the charged offenses,” and it

held that the defendant “failed to establish the prejudice prong of the plain-

error rule” because he was “unable to show any reasonable probability that

the outcome of his trial would have been otherwise.” Id. at ¶ 35 -36. This

articulation of the standard, i.e., that the defendant must show a reasonable

probability that the error was outcome-determinative, mirrors the one the

court applies when reviewing assertions of prejudice in ineffective-

assistance-of-counsel claims. E.g., State v. Sowell, 148 Ohio St.3d 554,

2016-Ohio-8025, ¶ 138, 71 N.E.3d 1034 (“To establish ineffective

assistance of counsel, an appellant must show * * * prejudice, i.e., a

reasonable probability that, but for counsel's errors, the outcome of the

proceeding would have been different.”). And although this expression of

the standard did not garner a majority in West, it was essentially approved by

a unanimous court the very next day in State v. McAlpin, Slip Opinion No.
Hocking App. No. 21CA9 42

2019-0926, 2022-Ohio-1567, 2022 WL 1493680, Id. at ¶ 90 (“McAlpin

could not establish plain error, because he cannot show a reasonable

probability that but for standby counsel's actions, the jury would have

acquitted him.”).

{¶88} Thus, when assessing the substantial-rights prong of the plain-

error test, courts ought to apply the standard endorsed by the Supreme Court

of Ohio in Rogers, as implemented by the three-justice plurality in West and

the unanimous court in McAlpin. That is, to demonstrate that the trial court's

error affected a substantial right, the defendant must establish that there is a

reasonable probability that, but for the trial court's error, the outcome of the

proceeding would have been otherwise. This in turn requires the defendant

to show “ ‘that the probability of a different result is “sufficient to

undermine confidence in the outcome” of the proceeding.’ ” State v. Myers,

154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 130, 114 N.E.3d 1138, quoting

United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159

L.Ed.2d 157 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694,

104 S.Ct. 2052 (1984).

{¶89} In applying the above standard in Stevens’ case, although the

cell phone records were not authenticated as business records pursuant to

Evid.R. 803(6), the trial court did not commit plain error by admitting the
Hocking App. No. 21CA9 43

evidence derived from those records. While we observe that the State's case

was somewhat bolstered due to Deputy Bowman’s testimony and State's

Exhibits 13 and 18, even with this evidence removed from the equation we

are not persuaded that the outcome of Stevens’ trial would have been

different. While the State's case against Stevens is certainly stronger with

the CDR than it is without it, the probability that a trial untainted by the trial

court's error would have turned out differently is not so great as to

undermine our confidence in the outcome of Stevens’ trial.

{¶90} In our view, a trier of fact aware of the testimony elicited at

trial from Jeremy Myers, Robbie Davis, Sherry Lowery, David Lowery, and

through the recorded statement between Myers and Stevens, would not be

likely to find that the State failed to prove Stevens’ complicity in the

burglaries. Myers testified as to the conversation he overheard in Stevens’

garage, wherein Stevens knew that Davis was going to be away from his

home. Robbie Davis testified that he was talking to Stevens while he

installed his surveillance camera a few days before he left. It can be inferred

that Stevens knew to be on the lookout for the surveillance camera.

According to Davis, Stevens also knew Davis had a safe because they

purchased them at the same time.

{¶91} Myers also testified that Stevens planned the burglaries as a
Hocking App. No. 21CA9 44

way of paying back Brandon Allen for money owed. The plan was for

Allen, Myers and Kenny Wells to break into Davis’s home and steal his safe.

Brandon Allen would get the money in the safe and Stevens was to get the

firearms. Myers testified the next day that Stevens told him that “their dumb

asses went in there and got caught so he fixed it.” According to Myers,

Stevens broke the SD card from the surveillance camera so there wouldn’t

be anything to identify the crew and left a Ford truck key on an outside

water spout so the crew could use a truck to move the safe.

{¶92} Both Sherry Lowery and David Lowery testified about the

surveillance camera from Davis’s bedroom. After attempts to play the card

were unsuccessful, Tony Davis then laid the SD card on the kitchen table.

Stevens also tried to play the SD card on his phone. The next time Sherry

Lowery saw the SD card on the kitchen table, it was broken. Stevens was

also present when she placed Davis’s keys out of sight, on a Lazy Susan.

The testimony about the broken SD card tracks Myers’ testimony that

Stevens broke it. The fact that Stevens was present when Sherry Lowery

placed the keys out of sight demonstrates he knew where to find the key he

later placed on the water spout. This fact was also corroborated by Myers’

testimony.

{¶93} Rob Davis testified he kept a pistol in his sock drawer in his
Hocking App. No. 21CA9 45

bedroom, where the surveillance camera was located. Sherry Lowery

testified that Stevens confirmed the pistol was in the drawer, from which we

may infer Stevens was in the bedroom where the camera was located. When

Sherry left the room, the surveillance camera was not pointing upward.

When she returned the next day, the camera was pointed upward.

{¶94} Myers testified about the secretly recorded statement in

which Stevens and he discuss the burglaries. Stevens never denies

participation in the crimes. These details are set forth fully below in

Assignment of Error Four. The jury also heard the recorded statement.

{¶95} We find that Stevens has failed to demonstrate that there is a

reasonable probability that, but for the trial court's erroneous admission of

the CDR, the outcome of his trial would have been different. Consequently,

Stevens failed to establish the substantial-rights prong of the plain-error test,

and we conclude that the trial court did not commit plain error by allowing

Detective Bowman’s testimony about the CDR or by admitting State's

Exhibits 13 and 18. Based on the foregoing, we find no merit to Stevens’

second assignment of error and it is hereby overruled.

ASSIGNMENT OF ERROR THREE - INEFFECTIVE

ASSISTANCE OF COUNSEL

{¶96} Stevens argues that his trial attorney’s performance fell below
Hocking App. No. 21CA9 46

the objective standard of reasonableness. In this case, Stevens was

convicted of planning and participating in burglaries which occurred in

December 2013, yet he was not indicted until December 2019. By this time,

Stevens’ health had declined. Stevens’ trial counsel did not move the court

to dismiss the indictment on the basis of alleged unjustifiable and prejudicial

preindictment delay. Stevens contends that by the time of trial, due to his

physical and mental decline, he was unable to assist in his own defense.

Thus, Stevens urges us to conclude that his counsel’s omission demonstrates

deficient performance and that he was prejudiced by the alleged deficient

performance.

A. STANDARD OF REVIEW

{¶97} “To prevail on an ineffective assistance claim, a defendant must

show: ‘(1) deficient performance by counsel, i.e., performance falling below

an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel's errors, the proceeding's result

would have been different.’ ” State v. Dixon, 4th Dist. Hocking No.

21CA10, 2022-Ohio-4454, at ¶ 46, quoting State v. Short, 129 Ohio St.3d

360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984). Failure to

satisfy either part of the test is fatal to the claim. See Strickland at 697. The
Hocking App. No. 21CA9 47

defendant “has the burden of proof because in Ohio, a properly licensed

attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. We “must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’ ” Strickland at 689, quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955); State v. Moore, 4th Dist.

Pickaway No. 20CA10, 2021-Ohio-4414, ¶ 12.

B. LEGAL ANALYSIS

{¶98} “ ‘Decisions to grant or deny a motion to dismiss on

grounds of preindictment delay are reviewed for an abuse of discretion.’ ”

State v. Thacker, 4th Dist. Lawrence No. 19CA18, 2021-Ohio-2726, at ¶ 35,

quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d

971, ¶ 33. “Appellate review of a trial court's decision on a motion to

dismiss for a speedy trial violation involves a mixed question of law and

fact. Generally, an appellate court will defer to a trial court's factual

findings if competent and credible evidence supports those findings.

However, an appellate court will review de novo a trial court's application of

the law to those facts.” (Citations omitted.) State v. Phillips, 2018-Ohio-
Hocking App. No. 21CA9 48

1794, 111 N.E.3d 351, ¶ 9 (4th Dist.). Had Stevens’ counsel filed a motion

to dismiss based upon preindictment delay, the trial court would have

reviewed it under the above standards.

{¶99} “A criminal defendant has a right to a speedy trial under the

Sixth Amendment to the United States Constitution and Article I, Section 10

of the Ohio Constitution. ‘The Due Process Clause of the Fifth Amendment

provides limited protection against preindictment delay.’ ” Thacker, supra,

at ¶ 37, quoting State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45

N.E.3d 127, ¶ 97, citing United States v. Lovasco, 431 U.S. 783, 789–790,

97 S.Ct. 2044 (1977). These rights afford no protection to those who have

not yet been accused unless preindictment delay has caused actual prejudice

to the defendant. Thacker, supra.

{¶100} The Supreme Court of Ohio recently revisited the framework

for analyzing a due-process claim based on preindictment delay in State v.

Bourn, Ohio Slip Opinion No. 2022-Ohio-4321, 2022 WL 174194-5.

“ ‘[P]reindictment delay violates due process only when it is unjustifiable

and causes actual prejudice.’ ” Bourn, supra, at ¶ 11, quoting State v. Jones,

148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, at ¶ 12. This court

has “firmly established a burden-shifting framework for analyzing a due-

process claim based on preindictment delay.” Id. at ¶ 13. Pursuant to that
Hocking App. No. 21CA9 49

framework, a defendant first bears the burden of presenting evidence that the

preindictment delay caused actual prejudice. Id., citing State v. Whiting, 84

Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998), and State v. Adams, 144 Ohio

St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99. After the defendant has

provided evidence of actual prejudice, the burden shifts to the state to

produce evidence of a justifiable reason for the delay. Id., citing Whiting

and Adams.

{¶101} Jones explained that the actual prejudice determination is

inherently dependent on the particular facts of each case: “A determination

of actual prejudice involves ‘ “a delicate judgment” ’ and a case-by-case

consideration of the particular circumstances.” Id. at ¶ 20, quoting State v.

Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting

United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455 (1971). See also

Bourn, supra, at ¶ 12. Near the conclusion of its analysis in Jones, the Court

succinctly stated its key holding: “ ‘Actual prejudice exists when missing

evidence or unavailable testimony, identified by the defendant and relevant

to the defense, would minimize or eliminate the impact of the state's

evidence and bolster the defense.’ ” Bourne, at ¶ 14, quoting Jones, 148

Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, at ¶ 28, citing State v.
Hocking App. No. 21CA9 50

Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984). The Bourn

court observed:

The use of the word “would” in the Jones decision is
significant. It is not enough for a defendant to show that
the missing evidence or unavailable testimony “could” or
“may” help the defendant. Instead, the defendant must
show that the evidence or testimony would help the
defendant.

Id. at ¶17.8

{¶102} Having discussed the framework detailed in Bourn and Jones

and affirmed in those cases as the proper method to apply in analyzing this

case, we now proceed to determine whether Stevens presented evidence of

actual prejudice.

1. Did Stevens demonstrate actual prejudice due to the
fact that in the intervening years several fact witnesses
died?

{¶103} Stevens and the victim of the burglaries, Robbie Davis, are

cousins. Many of the persons who showed up to investigate or otherwise

assist at Davis’s house at the time of the burglaries in 2013 were family

8
Recognizing that it may be a high standard for defendants, the Supreme Court of Ohio observed:
“the standard is commensurate with the defendant's burden in these cases.” Bourn, supra, at ¶18.
“ ‘[T]he burden upon a defendant seeking to prove that preindictment delay violated due process is
nearly “insurmountable.” ’ ” Adams, supra, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127,
at ¶ 100, quoting United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir. 2017), quoting
United States v. Rogers, 118 F.3d 466, 477 (6th Cir.1997), fn. 10. See Bourn, supra. “[W]hile it
may be difficult to prove a pretrial claim for preindictment delay, a defendant is not barred from
seeking review of a preindictment-delay claim at the close of trial, when the impact and
significance of missing evidence or unavailable testimony may be clearer.” Bourn, supra.
Hocking App. No. 21CA9 51

members related to both Stevens and Davis. Stevens asserts that during the

intervening years between the burglaries and his indictment for the crimes,

the “only non-relative witnesses died.” Stevens contends that these non-

relative witnesses were the only truly neutral parties who could have

testified about key facts. The State responds that Stevens has failed to

explain what exculpatory evidence that these witnesses would have offered

and therefore fails to establish actual prejudice. We agree. As discussed

above, “Actual prejudice exists when * * * unavailable testimony identified

by the defendant and relevant to the defense would minimize or eliminate

the impact of the state’s evidence and bolster the defense.” Jones at ¶ 28;

Bourn, at ¶ 14.

{¶104} We first observe that Stevens vaguely references these non-

relative neighbor witnesses but does not identify them. In the reply brief,

Stevens argues that these persons witnessed the initial activity at Davis’s

house before calling his family to the scene. He argues these witnesses

could have testified about the truck in the driveway; whether the Davis’s

house was disturbed; who unlocked the deadbolt to Davis’s house; whether

Stevens was accompanied when he checked the fields and what was his

location when Sherry returned to Davis’s house.

{¶105} Our review of the pleadings and trial transcript indicates
Hocking App. No. 21CA9 52

several persons, in addition to those that testified at trial, as potential non-

relative neighbor witnesses: Eric Smith, Deanna Tatman, Rick Reid, Debbie

Woodward, Larry Wray, Derick Shirey, Christopher Crockett, Virgil Woods,

Owen Eveland, and Threse Eveland. Stevens explains neither which of

these potential witnesses are the non-relative neighbors nor, importantly, the

substance of their allegedly exculpatory testimony. As noted above, Jones

and Bourn require a showing that such testimony would minimize or

eliminate the impact of the state’s evidence and bolster the defense.

Stevens indicates only that these witnesses “could” have testified about his

whereabouts during the pertinent time frames, not what the witnesses

“would” have testified.

{¶106} Stevens’ argument constitutes pure speculation. We do not

know who these witnesses are. We do not know the precise exculpatory

information that these unspecified witnesses supposedly possessed, and we

do not know how the alleged exculpatory information would have

minimized or eliminated the impact of the state’s evidence and bolstered

Stevens’ defense. Based on the foregoing, Stevens cannot show actual

prejudice.

2. Did Stevens demonstrate actual prejudice due to the
fact that Ed Downs was unavailable by the time of his
trial?
Hocking App. No. 21CA9 53

{¶107} Stevens asserts that Detective Ed Downs, formerly of the

Hocking County Sheriff’s Office, spearheaded the investigation of the

criminal activities which occurred at Robbie Davis’s home in December

2013. Stevens informs that by the time of his 2021 trial, Downs had

resigned from his position with Hocking County after being under

investigation.9 Stevens asserts that Downs’ unavailability as a witness at

trial prejudiced the defense because it was necessary to cross-examine

Downs as to his use of coercion and undue influence upon Jeremy Myers

and Timothy Stein. Myers wore a wire to record a conversation with

Stevens. Stein drove Myers to meet Stevens and Stein’s voice is heard

briefly on the recording. Myers entered a plea agreement with the State of

Ohio, terms of which included his agreement to testify at any trial of Stevens

or two other persons.10

{¶108} The Logan County Common Pleas Court docket reveals that

the State served a subpoena on Ed Downs at 1296 Highland Park Road,

Logan, Ohio, on June 3, 2021. Thus, it appears Downs was available

although the State chose not to call him. As the State points out, if Stevens

9
Throughout trial the defense attempted to cast aspersions on Downs’ character by veiled references about
his resignation and an unspecified investigation of him.
10
Timothy Stein was in jail with Myers on a probation holder when Detective Downs approached Myers for
questioning. Apparently Stein also got out at the same time as Myers although anything he knew about
Stevens or the robberies did not enter into the evidence at trial.
Hocking App. No. 21CA9 54

wished to have Ed Downs attend trial to provide crucial cross-examination

testimony, Stevens could have also subpoenaed Downs for attendance at

trial.

{¶109} Moreover, had defense counsel tracked down Ed Downs, the

actual substance of his cross-examination testimony is unknown. Stevens

has not shown how Ed Downs’ potential cross-examination testimony would

have minimized or eliminated the impact of the State’s evidence and

bolstered Stevens’ defense. That upon cross-examination, Downs would

have admitted any coercion and undue influence upon Jeremy Myers and

Timothy Stein is only speculation. As such, we cannot say that Stevens has

shown actual prejudice by his counsel’s failure to procure testimony from Ed

Downs at the trial.

3. Did Stevens demonstrate actual prejudice due to his
serious health conditions and decline which rendered
him unable to assist in his own defense at trial?

{¶110} Stevens asserts that he had a brain injury and stroke in 2015,

allegedly affecting his memory, communication, and presentation. In the

defense’s opening, Stevens’ attorney argued that due to Stevens’ health

conditions, Stevens was unable to deny any involvement in the burglaries

when secretly recorded by Jeremy Myers. Stevens contends that these

health conditions impacted his ability to assist in his own defense and caused
Hocking App. No. 21CA9 55

actual prejudice. After reviewing the record, we are unpersuaded by this

argument. Generally, courts have held that “ ‘a defendant's own general

assertion that he does not remember details of an event that occurred [nearly

20 years ago] does not, in and of itself, constitute actual prejudice.’ ” State

v. Hunter, 2017-Ohio-4180, 92 N.E.3d 137 (8th Dist. 2017), at ¶ 18, quoting

State v. Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 26; State

v. Ricosky, 5th Dist. Stark No. 2003CA00174, 2004-Ohio-2091, ¶ 15.

{¶111} Stevens directs us to the Fifth District’s analysis in its finding

of actual prejudice in State v. Bost, 5th Dist. Licking No. 2020CA00050,

2021-Ohio-2190. Bost was indicted for murder in 2018 following the death

of her boyfriend, Hughes, from three gunshot wounds inflicted by Bost.

Bost pled not guilty. The trial court granted Bost’s request for a

psychological evaluation by an expert. Bost claimed the shooting was in

self-defense and that she suffered from Battered Woman’s Syndrome. The

State of Ohio appealed the trial court’s decision granting Bost’s motion to

dismiss due to preindictment delay.

{¶112} The trial court in Bost set forth the analysis to evaluate a claim

of preindictment delay causing actual prejudice. The trial court found Bost

provided ample evidence of actual prejudice. A domestic evaluation report

prepared by a Dr. Fischer contained the doctor’s opinion that Bost suffered
Hocking App. No. 21CA9 56

chronic and life-threatening abuse, leading to the conclusion that Bost

suffered from Battered Woman Syndrome. Furthermore, due to the severity

of strangulation and direct blows to her head, Bost may have experienced

brain injury.

{¶113} In her motion to dismiss, Bost contended the preindictment

delay prevented her from confirming her injuries with medical tests because

her injuries healed during the passage of time from the offense in 2012 to the

indictment in 2018. The State countered that the evidence of a brain injury

was merely speculative because she was examined after the shooting and

there was no medical evidence that she suffered from a head injury. Further,

Bost could have sought additional medical testing in 2012 if she were

concerned there was a possible brain injury. The trial court agreed that if

medical testing had been done in 2012, the testing would have provided

conclusive evidence whether Bost suffered a brain injury due to Hughes’

physical assaults.

{¶114} That Bost had a physical injury was bolstered by the medical

records from 2012 confirming that Bost suffered a deep contusion injury to

her back. Bost would have less reason in this case to independently obtain

medical testing because on May 18, 2012, the State closed the case without
Hocking App. No. 21CA9 57

charges, stating it would not review the case unless new evidence was

discovered. The State stipulated that no new evidence had been discovered.

{¶115} Upon review, the appellate court found no abuse of discretion

for the trial court to find that Bost suffered actual prejudice by the

preindictment delay because evidence of her physical injuries was lost due to

the passage of time. Citing the reasons set forth by the trial court, the

appellate court affirmed the trial court’s decision granting Bost’s motion to

dismiss.

{¶116} At Stevens’ trial, the State played a recorded statement that

Jeremy Myers obtained by wearing a wire. The recorded statement begins

by identifying the date it was made as July 8, 2014. In the opening

statement, defense counsel argued:

{¶117} After * * * he’s had a stroke and been beaten to within an

inch of his life with a ratchet and is in very serious physical and mental

condition, [Stevens] doesn’t deny the statements that this * * * Jeremy

Myers gets him in a truck. All the talk is from Myers. Never once will we

hear Dean say, oh, yeah, I did this and that * * *.

{¶118} Upon review, we find no merit to Stevens’ assertion. The

State points out, the recorded conversation with Jeremy Myers took place in

July 2014, before Stevens’ health allegedly declined. Stevens was
Hocking App. No. 21CA9 58

physically able to drive alone to meet Myers and got into the vehicle with

Myers without assistance. The recording demonstrates that the very first

question Stevens asked Myers when he got into the truck was whether or not

Myers was “wired,” and Myers testified Stevens patted his stomach while

doing so. While Stevens did deny involvement in an unrelated criminal

matter, when confronted with a discussion about the burglaries at the Davis

home, three times, Stevens remained silent and did not deny involvement.

On this date, Stevens seems physically able and mentally capable of looking

out for his own best interests by asking about a wire and saying as little as

possible about the Davis burglaries.

{¶119} We also note that no motion for competency was filed.

Unlike Bost, Stevens provided no medical evidence documenting diagnosed

cognitive deficits or mental decline. Nothing in the record indicates

Stevens’ health rendered him unable to assist in his defense. Thus, Stevens’

argument is again speculative.

{¶120} Based on the three arguments asserted within this assignment

of error, we do not find counsel’s performance was deficient by failing to

file a motion to dismiss due to preindictment delay. In our view, such a

motion would likely have been a futile act. “ ‘The law does not require

counsel to take a futile act.’ ” State v. Ludwick, 4th Dist. Highland No.
Hocking App. No. 21CA9 59

21CA17, 2022-Ohio-2609, at ¶ 46, quoting State v. Conant, 4th Dist. Adams

No. 20CA1108, 2020-Ohio-4319, at ¶ 30. And, the failure to perform a

futile act does not support a claim of ineffective assistance of counsel. State

v. Black, 4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶ 37.

{¶121} Because we do not find counsel’s performance was deficient,

we cannot find one of the necessary Strickland prongs and cannot find that

trial counsel rendered Stevens ineffective assistance. Accordingly, this

assignment of error is without merit and is hereby overruled.

ASSIGNMENT OF ERROR FOUR - IMPROPER ADMISSION OF

EVIDENCE

{¶122} Stevens argues that the trial court erred by allowing evidence

referring to other alleged criminal acts or criminal tendencies attributed to

him which created an improper character inference. Moreover, this evidence

was irrelevant and unfairly prejudicial. This evidence came in at trial via the

recorded statement surreptitiously obtained by Jeremy Myers, who wore a

wire and engaged Stevens in conversation about criminal acts.

{¶123} Prior to trial, the State of Ohio filed a notice pursuant to
Hocking App. No. 21CA9 60

Evid.R. 404(B) of its intent to introduce evidence of “other acts” of the

defendant via the recorded statement. Stevens filed a Motion in Limine to

exclude the recorded statement. At trial, the court denied the motion.11

A. STANDARD OF REVIEW

{¶124} Ordinarily, we review claims of improper and erroneous

admission or exclusion of evidence claims under the abuse-of-discretion

standard of review. And because a trial court's decision on a motion in

limine is a ruling to admit or exclude evidence, the standard of review on

appeal is whether the trial court committed an abuse of discretion that

amounted to prejudicial error. State v. Fowler, 2017-Ohio-438, 84 N.E.3d

269, ¶ 14 (10th Dist.); Gordon v. Ohio State Univ., 10th Dist. Franklin No.

10AP-1058, 2011-Ohio-5057, at ¶ 82.

{¶125} However, courts use a three-step analysis to determine

whether evidence of other crimes, wrongs, or acts of an accused may be

admissible. See State v. Ludwick, 4th Dist. Highland No. 21CA17, 2022-

Ohio-2609, at ¶17; State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,

983 N.E.2d 1278, ¶ 19.

The first step is to consider whether the other acts evidence
is relevant to making any fact that is of consequence to the
determination of the action more or less probable than it

11
However, the trial court did exclude a portion of the recording which had to do with a person named “Chubb” and which is not
relevant to this appeal.
Hocking App. No. 21CA9 61

would be without the evidence. Evid.R. 401. The next
step is to consider whether evidence of the other crimes,
wrongs, or acts is presented to prove the character of the
accused in order to show activity in conformity therewith
or whether the other acts evidence is presented for a
legitimate purpose, such as those stated in Evid.R. 404(B).
The third step is to consider whether the probative value
of the other acts evidence is substantially outweighed by
the danger of unfair prejudice. See Evid.R 403.

Id. at ¶ 20.

{¶126} Thus, the admissibility of other-acts evidence under Evid.R.

404(B) is a question of law that we review de novo. See Ludwick, at ¶18;

State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651,

¶ 22 (“because ‘[d]etermining whether the evidence is offered for an

impermissible purpose does not involve the exercise of discretion * * *, an

appellate court should scrutinize the [trial court's] finding under a de novo

standard’ of review” (brackets and emphasis sic)). “Weighing the probative

value of the evidence against its prejudicial effect is a highly fact-specific

and context-driven analysis. Balancing the risks and benefits of the

evidence necessarily involves an exercise of judgment; thus, the trial court's

determination should be reviewed for an abuse of discretion.” Id. at ¶ 30.

Thus, we conduct a de novo review of the first two steps of the analysis (i.e.,

is the evidence relevant and is it presented for a legitimate purpose) and we

conduct an abuse of discretion review of whether the probative value of it
Hocking App. No. 21CA9 62

outweighs the danger of unfair prejudice. State v. Lotzer, 3d Dist. Allen No.

1-20-30, 2021-Ohio-3701, ¶ 8 (“the first two steps (i.e., relevancy under

Evid.R. 401 and Evid.R. 402 and the particular purpose the evidence is

offered under Evid.R. 404(B)) are intertwined and pose legal questions, and

thus, are reviewed under a de novo standard of review. * * * However, the

third step (i.e., Evid.R. 403’s balancing tests) ‘constitutes a judgment call,’

which we review under an abuse-of-discretion standard”).

B. LEGAL ANALYSIS

{¶127} Evid.R. 404(B) prohibits evidence of a defendant's “other

crimes, wrongs, or acts” when “its only value is to show that the defendant

has the character or propensity to commit a crime.” State v. Smith, 162 Ohio

St.3d 353, 2020-Ohio-4441, 165 N.E.3d 1123, ¶ 36. Defendant's other acts

are admissible for another purpose, such as “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

In other words, “ ‘the evidence must prove something other than the

defendant's disposition to commit certain acts.’ ” Id., quoting State v.

Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22. The

Smith court observed:

The threshold question is whether the evidence is relevant.
* * * [T]he problem with other-acts evidence is rarely that
it is irrelevant; often, it is too relevant. In the Evid.R.
404(B) context, the relevance examination asks whether
Hocking App. No. 21CA9 63

the proffered evidence is relevant to the particular purpose
for which it is offered, as well as whether it is relevant to
an issue that is actually in dispute.

Id. at ¶ 37.

{¶128} Smith further noted that the court should begin by evaluating

whether the evidence is relevant to a non-character-based issue material to

the case. “If the evidence is not premised on improper character inferences

and is probative of an issue in the case, the court must then consider whether

the evidence's value ‘is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.’ ” Id. at ¶ 37,

quoting Evid. R. 403(A); Hartman, supra, at ¶29.

{¶129} Furthermore, as the Supreme Court of Ohio has held,

“ ‘evidence of other crimes may be presented when “they are so blended or

connected with the one on trial as that proof of one incidentally involves the

other; or explains the circumstances thereof; or tends logically to prove any

element of the crime charged.” ’ ” State v. Baird, 8th Dist. Cuyahoga No.

111428, 2023-Ohio-303, at ¶ 61 (P.J. Sean Gallagher, concurring in

judgment only); quoting State v. Wilkinson, 64 Ohio St.2d 308, 317, 415

N.E.2d 261 (1980), quoting United States v. Turner, 423 F.2d 481, 483-484

(7th Cir. 1970); accord State v. Roe, 41 Ohio St.3d 18, 23, 535 N.E.2d 1351
Hocking App. No. 21CA9 64

(1989); see also State v. Evans, 8th Dist. Cuyahoga No. 108648, 2020-Ohio-

3968, ¶ 108.

{¶130} On appeal, Stevens asserts improper “other acts evidence”

was admitted at his trial via the recorded statement made by Jeremy Myers.

Stevens cites several violations: (1) a discussion about a stolen backhoe; (2)

Myers’ comments that Stevens hid his activities from his wife and father; (3)

Myers’ comments that he was uncomfortable getting into the vehicle with

Stevens, implying Stevens’ character for violence; (4) Stevens comment that

he did not want to be seen in public with Myers; (5) Stevens comment that

he let his burner phones run out; (6) Stevens had taken property to Chubb in

an effort to make money. Stevens argues these “other acts” references

bolstered Myers’ testimony and created improper character references that

were irrelevant and unfairly prejudicial.

{¶131} The recorded statement is difficult to hear in parts. The

recording begins with a recitation of the date, July 8, 2014, at 12:19 p.m. and

indicates that two confidential informants will be seeking Stevens in order to

engage him in conversation about the burglaries at the Davis property in

2013. The two confidential informants attempt to speak to Stevens at his

home. Eventually they make contact with Stevens and he instructs them to

follow him to a different location because he “don’t want anyone to see us
Hocking App. No. 21CA9 65

talking.” Myers can also be heard saying to Timothy Stein that he doesn’t

want to get into the vehicle with Stevens.

{¶132} We have reviewed the recorded statement in its entirety and

will set forth the relevant portions herein. When Myers gets into Stevens

vehicle, the conversation is as follows:

Stevens: What’s going on?

Myers: I need to make some money.

Stevens: You ain’t wired are you?

Myers: No. Shane has fucked us up. I got my
motion for discovery back from Gallia
County. Him and Brandon are on it.
Talking about Rob Davis’s house. Truck
and trailer missing. You leaving the key for
the truck.

Stevens: Huh.

Myers: I been leery to go around anybody.

***

Stevens: I let everything run out. Let them all go.

Don’t know who to trust.

Myers: I ain’t saying shit about nothing. What’s
up? We gonna make some money.
I got fucking heebie jeebies about moving
that hoe.
I got my discovery back. Robbie Davis
house was broken into. You had it set up
to be done.
Hocking App. No. 21CA9 66

Stevens: You think that’s how he got out of jail?

Myers: I got a statement you wrote.

Stevens: I never wrote one. I never wrote anything.
I never knew anything about nothing.

Myers: Brandon went on in his statement about
Robbie Davis’s house. You left key for a
White Ford on the waterspout. All that shit
Came up missing.

Stevens: I’d like to see, read, see that motion for
Discovery.

{¶133} At this point, Stevens lowers his voice.

Myers: Let’s do it man, like to make some money.
Know someone who wants hoe. We can
Make money off it.

Stevens: I’ll give you a call this evening.

{¶134} The State was required to prove that Stevens acted “with

purpose to commit in the structure * * * any criminal act.” Stevens’ defense

was that there was no evidence beyond a reasonable doubt on the elements

of the charge. Thus, Stevens’ intent is at issue. Did Stevens mastermind the

burglaries and was he complicit in the commission of the crew’s crimes, or

rather were the burglaries completed solely by the crew, with no culpability

on behalf of Stevens? The State asserts that the above evidence was
Hocking App. No. 21CA9 67

admissible to prove Stevens’ identity, scheme, or plan in committing the

charged offenses.

{¶135} Based upon our de novo review, we find that the trial court

did not err in admitting evidence of the discussion about stealing a backhoe.

Myers testified earlier that he performed criminal acts on behalf of Stevens.

On the recorded statement, Myers mentions that he knows someone who

wants a backhoe and they can “make some money.” Stevens replies that he

will call him later. The testimony about the backhoe is relevant because it

demonstrates another criminal scheme in which Stevens is involved.

Offered for this reason, it is a legitimate purpose. Furthermore, we do not

find its probative value is substantially outweighed by any unfair prejudice.12

{¶136} Myers testified earlier in trial that the burner phones

were changed out every 30-40 days so they could not be used as evidence.

Stevens’ statement that he let his burner phones “run out” is also relevant

evidence. The evidence was offered for the same legitimate purpose as

above, to demonstrate a common plan or scheme. We do not find the

12
See State v. Collins, 6th Dist. Wood No. WD-84-5, 1984 WL 14329, (July 27, 1984), at *2,
(Evidence that opening in garage door was made by a prior break-in was highly probative in light
of appellant's claim of coincidence in stopping at exact spot when numerous and more accessible
sites were available for servicing of truck and as purpose to commit a theft is a key element of
charge of breaking and entering, admission of evidence of the prior break-in was properly granted
by trial court.)
Hocking App. No. 21CA9 68

probative value of this evidence is substantially outweighed by any unfair

prejudice.13

{¶137} Stevens asked Myers to follow him to a different location

and indicated he did not want his family to know of his activities. He further

stated he did not want to be seen in public with Myers. This evidence

suggests Stevens hid his criminal activities from his family. Stevens’

counsel elicited testimony from the victim, Robbie Davis, of Stevens’

kindness and goodness to others. He testified Stevens donated to others and

“had a big heart.” In closing arguments, Stevens counsel asked the jury to

acquit Stevens and restore him to dignity.

{¶138} The testimony that Stevens hid his activities and did not

want to be seen with Myers, a known criminal, is relevant because it

contradicts the defense’s evidence. Stevens was convicted as a complicitor.

The testimony of Myers demonstrated that Stevens directed others to do

criminal acts, presumably in part not to tarnish his own reputation. This

13
See State v. Curry, 4th Dist. Scioto No. 95CA2330, 1997 WL600056, at 5. (Citing Wilkinson,
evidence concerning other facts which form part of the immediate background of an alleged act
which forms the foundation of the crime charged is admissible); State v. Carpenter, 12th Dist.
Butler No. CA2019-03-044, 2019-Ohio-4829, at ¶ 41, (Testimony that appellant kept his narcotics
in gas tank was extrinsic to the crime charged, probative of appellant’s identity, preparation and
plan, and would be admissible under Evid.R. 404(B).)
Hocking App. No. 21CA9 69

evidence has the legitimate purpose of contradicting the defense’s theory.

Its probative value is not substantially outweighed by unfair prejudice.14

{¶139} The testimony about Chubb was properly excluded at trial so

that argument herein has become moot.

{¶140} We find that the testimony that Myers dreaded getting into

the vehicle with Stevens, presumably because he feared violence, is not

relevant. Stevens was not charged with a violent crime. The only value of

the testimony would be to show that Stevens had a propensity for violence.

Similar testimony about Chubb was excluded. This testimony should have

been excluded as well. However, as discussed above at length in

Assignment of Error Two, there was ample other evidence of Stevens’ guilt.

Thus, we cannot say the admission of this evidence constituted unfair

prejudice or affected the outcome of the trial.

{¶141} We further note that the trial court gave the following

instruction at closing:

Evidence was received about the commission of other
crimes or wrongs other than the offenses with which the
defendant is charged in this trial. It was not received, and
you may not consider it to provide the character of the
defendant in order to show that he acted in conformity
with that character. If you find that the evidence of other

14
State v. Ash, 7th Dist. Monroe No. 16MO0002, 2018-Ohio-1139, at ¶ 66, (Testimony confirming
that relationship was “tumultuous” and “strained” immediately before victim went missing
constituted the immediate background of offense, was relative to motive, and relative to identity).
Hocking App. No. 21CA9 70

crimes or wrongs are true and that the defendant
committed them, you may consider that evidence only for
the purpose of deciding whether it proves motive or
knowledge of the circumstances surrounding the offense
charged in this trial. That evidence cannot be considered
for any other purposes.

{¶142} We presume that the jury followed the trial court’s

instructions.

{¶143} Based on the foregoing, we find no merit to Stevens’ fourth

assignment of error. Accordingly, it is hereby overruled.

{¶144} Having found no merit to any of Stevens’ assignments of

error, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
Hocking App. No. 21CA9 71

stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hess, J., & Wilkin, J.: Concur in Judgment & Opinion.

For the Court,

__________________________________
Jason P. Smith
Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.